REPUBLIC OF THE PHILIPPINES
SUPREME COURT
Manila
EN BANC
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 PAGADUANARAULLO, DR. ROLAND SIMBULAN and
TEDDY CASIÑO,
Petitioners,
-
versus -
G.R. NO. 212426
EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR., DEPARTMENT OF DEFENSE SECRETARY
VOLTAIRE
GAZMIN,
DEPARTMENT
OF
FOREIGN AFFAIRS SECRETARY ALBERT DEL
ROSARIO, JR., DEPARTMENT OF BUDGET
AND MANAGEMENT SECRETARY FLORENCIO
ABAD, and
ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL
EMMANUEL T. BAUTISTA,
Respondents.
x------------------------------------------------------------------x
BAGONG ALYANSANG MAKABAYAN (BAYAN),
represented by its Secretary General RENATO
M. REYES, JR., BAYAN MUNA PARTY-LIST
REP. NERI J. COLMENARES and REP. CARLOS
ZARATE, GABRIELA WOMEN’S PARTY-LIST
REP. LUZ ILAGAN and REP. EMERENCIANA DE
JESUS, ACT TEACHERS PARTY-LIST REP.
ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST
REP. FERNANDO HICAP, KABATAAN PARTYLIST REP. TERRY RIDON, , MAKABAYANG
KOALISYON NG MAMAMAYAN (MAKABAYAN),
represented by SATURNINO OCAMPO and LIZA
MAZA, BIENVENIDO LUMBERA, JOEL C.
LAMANGAN, RENATO CONSTANTINO, JR.,
RAFAEL MARIANO, SALVADOR FRANCE,
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MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
ROGELIO M. SOLUTA, and CLEMENTE G.
BAUTISTA,
Petitioners,
-
versus -
G.R. NO. 212444
DEPARTMENT OF DEFENSE SECRETARY
VOLTAIRE
GAZMIN,
DEPARTMENT
OF
FOREIGN AFFAIRS SECRETARY ALBERT DEL
ROSARIO, EXECUTIVE SECRETARY PAQUITO
OCHOA, JR., ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL
EMMANUEL
T.
BAUTISTA,
DEFENSE
UNDERSECRETARY PIO LORENZO BATINO,
AMBASSADOR LOURDES YPARRAGUIRRE,
AMBASSADOR J. EDUARDO MALAYA, JUSTICE
UNDERSECRETARY FRANCISCO BARAAN III,
AND DND ASST. SECRETARY FOR STRATEGIC
ASSESSMENTS RAYMUND JOSE QUILOP AS
CHAIRPERSON
AND
MEMBERS,
RESPECTIVELY, OF THE NEGOTIATING PANEL
FOR THE PHILIPPINES ON EDCA,
Respondents.
x------------------------------------------------------------------x
KILUSANG MAYO UNO, represented by its
Chairperson,
ELMER
LABOG;
CONFEDERATION FOR UNITY, RECOGNITION
AND
ADVANCEMENT
OF
GOVERNMENT
EMPLOYEES (COURAGE), represented by its
National
President
FERDINAND
GAITE,
NATIONAL FEDERATION OF LABOR UNIONSKILUSANG MAYO UNO, represented by its
National
President
JOSELITO
USTAREZ,
NENITA
GONZAGA,
VIOLETA
ESPIRITU,
VIRGINIA FLORES and ARMANDO TEODORO,
JR.,
Petitioners-in-Intervention,
x------------------------------------------------------------------x
MEMORANDUM
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MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
PETITIONERS, by counsel, to this Honorable Court, most
respectfully submit this memorandum and state: That “What we must achieve, hard as it may seem, is the
reclaiming of the task of security, of the upholding of
our sovereignty as States, through the participation
of people in managing their own societal defense,
by developing the capabilities of their own citizenry
to resist all kinds of encroachment on their
sovereignty without dependence on high technology
weaponry. Such a democratized system of security
will repudiate naturally not only foreign bases and
nuclear weapons but modern conventional
weaponry as well. People’s security instead of
national security will be possible when governments
represent a society as a whole rather than the
special militarized interests that currently dominate
the modern State. A dream perhaps, but necessary
dream.” 1
NATURE OF THE PETITION
1.
The Petition is a taxpayers’ suit and concerned citizens’ suit to –
a.
strike down and declare as unconstitutional the EDCA that was
entered into by the respondents on behalf of the Philippines, with the
government of the United States of America (US); and
b.
enjoin all the respondents from implementing the above
unconstitutional Agreement and to restrain them from any and all acts
relative thereto.
2.
The writ of certiorari and prohibition is being sought by the
petitioners on the ground that the respondents committed grave
abuse of discretion amounting to lack or excess of jurisdiction
when they entered into the EDCA with the US government in
utter disregard of the national sovereignty, territorial integrity and
national interest provision of the Constitution, Section 25 of the
Transitory provisions of the Constitution, Section 21 and other
Former Senator Wigberto E. Tañada, Keynote Address delivered before the
Asia-Pacific People’s Conference on Peace and Development, January 12, 1989,
quoting Richard Falk, Princeton Professor on International Law.
1
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MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
provisions of the Philippine Constitution and various Philippine
laws and principles of international law.
3.
The EDCA was negotiated in secrecy for nearly two years.
During the period that the respondents and the US were
negotiating EDCA, only bits and pieces of information were
released regarding the terms of the Agreement.
4.
With the signing of the Agreement on April 28, 2014, there is no
plain, speedy and adequate remedy in the ordinary course of
law for Petitioners but to avail themselves of the instant Petition
pursuant to Sections 1 and 2 of Rule 65 of the Revised Rules of
Court.
5.
Considering the transcendental implications of the assailed
actions and proceedings of respondents to the Filipino people
and the nation, petitioners implore the Honorable Supreme
Court to judiciously exercise its expansive power of judicial
review as mandated in Article VIII, Section 1 of the Constitution,
to wit:
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
of the Government.
6.
The exercise of judicial review to determine whether the
Executive branch of the government through the respondents
has exceeded its powers and prerogatives is a duty “specifically
enjoined upon it by the Constitution as part of a system of
checks and balances” 2 especially where it involves the national
interest and survival, the integrity of our territory, and the sanctity
of the Constitution.
7.
As respondents' actions are causing and will cause grave
injustice and irreparable violation of the Constitution and the
Filipino people’s rights; and given the transcendental importance
of the case, petitioners, as taxpayers and concerned citizens,
seek the issuance of a temporary restraining order and/or writ of
preliminary injunction ordering the respondents to cease and
desist from proceeding with the implementation of EDCA and
2
Dabuet vs. Roche Pharmaceuticals, 149 SCRA 386.
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MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
from further threatening and performing acts that are violative of
the Constitution.
PARTIES
The Petitioners
8.
Petitioner Bagong Alyansang Makabayan (BAYAN), is an
umbrella organization and broad alliance of church groups,
peasant organizations, labor federations, youth and student
movements, women’s groups, fisherfolk, indigenous peoples,
lawyers, health workers, migrant groups, and other
professionals. It is represented in this Petition by its Secretary
General Renato M. Reyes, Jr. who is authorized by virtue of a
Certificate dated May 21, 2014, a copy of which is attached in
the Petition as Annex “B.” Its national office is at No. 1 Maaralin
corner Matatag St., Brgy. Central, Quezon City.
9.
Petitioners Rep. Neri J. Colmenares and Rep. Carlos Zarate
are both incumbent Bayan Muna Party-List representatives in
Congress.
10.
Petitioners Rep. Luzviminda C.
Ilagan and Rep.
Emerenciana A. de Jesus are incumbent party-list
representatives of Gabriela Women's Party in Congress.
11.
Petitioner Rep. Antonio L. Tinio is the incumbent
representative of ACT Teachers Party-List in Congress.
12.
Petitioner Rep. Fernando L. Hicap is the incumbent
representative of Anakpawis Party-list in Congress.
13.
Petitioner Rep. James Terry L. Ridon is the incumbent
representative of Kabataan Party-List in Congress.
Petitioner – Party-List Representatives all hold office at the
House of Representatives, Batasan Hills, Quezon City.
14.
Petitioner Makabayang Koalisyon ng Mamamayan
(Makabayan) is a political coalition of progressive party-list
organizations, duly organized and existing under and by virtue
6
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
of Philippine laws.
Makabayan is represented here by
Saturnino C. Ocampo and Liza Maza, its president and cochairperson, respectively, who have been authorized to
represent it in this petition through a Secretary’s Certificate
dated May 21, 2014, a copy of which is attached in the Petition
as Annex “C.” Makabayan is holding office at No. 20 Marunong
St., Barangay Central, Quezon City.
15.
Petitioner Bienvenido Lumbera is a National Artist for
Literature, a recipient of the Ramon Magsaysay Award for
Journalism, Literature and Creative Communications. He is
also the chairperson of Concerned Artists of the Philippines, an
organization of artists, musicians, writers, filmmakers and
cultural workers from various disciplines that works toward a
nationalist, people-oriented art and culture. His postal address
is 15-B Manigo St., Brgy. UP Village, Quezon City.
16.
Petitioner Joel C. Lamangan is a film and television director
and an actor with postal address at Room 209 Cabrera Bldg.,
Timog Ave., Quezon City.
17.
Petitioner Renato Constantino Jr.
is a businessman,
nationalist, activist and civil libertarian with postal address at
38-A Panay Avenue, Quezon City.
18.
Petitioner Rafael V. Mariano is the national chairperson of
Kilusang Magbubukid ng Pilipinas, a democratic and militant
movement of landless peasants, small farmers, farm
workers, rural youth and peasant women, duly organized
and existing under and by virtue of Philippine laws. Its office is
at 217-B Alley 1, Road 7, Project 6, Quezon City.
19.
Petitioner Salvador France is the vice-chair of Pambansang
Lakas ng Kilusang Mamamalakaya ng Pilipinas (or
“PAMALAKAYA”), a national federation of fisherfolk
organizations in the Philippines, whose members are affected
by the naval exercises conducted by US troops. He holds
office at No. 56 K-9th Barangay Kamias, Quezon City.
20.
Petitioner Rogelio M. Soluta is the national secretary-general
of Kilusang Mayo Uno, an independent labor center in the
Philippines promoting genuine, militant and anti-imperialist
trade unionism. He holds office at c/o Balai Obrero Foundation,
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MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
No. 63 Narra Street, Barangay Claro, Project 3, 1102 Quezon
City.
21.
Petitioner Clemente G. Bautista, Jr. is the national
coordinator of Kalikasan People’s Network for the Environment,
a network of people's organizations, non-governmental
organizations and environmental advocates. He holds office at
No. 26 Matulungin St., Brgy. Central, Diliman, quezon City.
22.
All of the petitioners may be served the processes of this
Honorable Court at the addresses of their lawyers indicated
below.
The Respondents
23.
Respondent Voltaire Gazmin is the incumbent Secretary of
the Department of National Defense who signed the lopsided
EDCA for the Philippines.
24.
Respondent Albert Del Rosario is the incumbent Secretary of
the Department of Foreign Affairs tasked to implement our
national foreign policy.
25.
Respondent Paquito Ochoa, Jr. is the Executive Secretary of
President Benigno Simeon Aquino, III who, upon the direction
and control of President Aquino as his alter ego, allowed the
negotiation and signing of the assailed EDCA despite its
contravention of the Constitution.
26.
Respondent General Emmanuel T. Bautista is the Chief of
Staff of the Armed Forces of the Philippines which is tasked
under EDCA to implement the same and, in particular, to
provide the US the so-called “agreed locations.”
27.
Respondent Negotiating Panel for the Philippines on
EDCA, composed of Defense Undersecretary Pio Lorenzo
Batino as Chair; Ambassador Lourdes Yparraguirre,
Ambassador
J. Eduardo Malaya, Justice Undersecretary
Francisco Baraan III, and DND Asst. Secretary for Strategic
Assessments Raymund Jose Quilop as members, with
instructions from the higher-ups, negotiated for such an
unequal agreement with the US.
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MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
28.
All of the respondents may be served the processes of this
Honorable Court through the Office of the Solicitor General, at
134 Amorsolo Street, Makati City.
ANTECEDENT FACTS3
29.
The defeat of the Spanish fleet at the hands of US naval forces
at the Battle of Manila Bay on May 1, 1898, cleared the way for
the U.S. occupation of Manila and the eventual transfer of the
Philippines from Spanish to American control.
30.
On June 12, 1898, so-called Philippine Independence was
declared in Kawit, Cavite. Part of the declaration of
independence read:
“And summoning as a witness of the rectitude of our intentions,
the Supreme Judge of the Universe, and under the protection of
the Mighty and Humane North American Nation, we proclaim
and solemnly declare, in the name and by authority of the
inhabitants of all these Philippine Islands, that they are and
have the rights to be free and independent; that they are
released from all obedience to the Crown of Spain.....” 4 But
Philippine Independence was farthest from the mind of the US
and soon enough their real intentions began to unfold.
31.
On December 10, 1898, the Treaty of Paris was signed by the
United States of America and Spain. Under the Treaty,
Philippines, Guam and Puerto Rico were ceded to America by
Spain. America paid Spain US$20-million for the Philippines.
32.
Eleven (11) days later or on December 21, 1898, even before
the Treaty of Paris could be ratified by the US Senate,
President William McKinley, issued the “Benevolent
Assimilation” Proclamation declaring that the United States
“come not as invaders or conquerors, but as friends, to protect
the natives in their homes, in their employment, and in their
personal and religious rights.”
3
http://www.history.com/this-day-in-history/the-battle-of-manila-bay
Renato Constantino, The Philippines: A Past Revisited, p. 204
4
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MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
33.
McKinley further declared that the United States wanted to “win
the confidence, respect, and affection of the inhabitants of the
Philippines by assuring them in every possible way that full
measure of individual rights and liberties which is the heritage
of free peoples, and by proving to them that the mission of the
United States is one of benevolent assimilation substituting the
mild sway of justice and right for arbitrary rule.”
34.
But despite such words, the proclamation actually directed US
military commanders to extend US sovereignty over the
Philippines.
35.
By July 1899, before the Philippine-American War broke out,
there were more than 11,000 American soldiers in the country.
By the end of that year there were 55,000. 5
36.
Philippine revolutionaries who fought against Spanish rule
during the war immediately turned their guns against the new
occupiers, and 10 times more U.S. troops died suppressing the
Philippines than in defeating Spain.
37.
Big-business, prominent bankers and politicians supported the
colonization of the Philippines. Their position was reflected by
the following words from US Senator Albert Beveridge “The
Philippines are ours forever, ‘territory belonging to the United
States,’ as the Constitution calls them. And just beyond the
Philippines are China's illimitable markets. …… The Philippines
gives us a base at the door of all the East... The Power that
rules the Pacific.... is the power that rules the world...” 6
38.
To pacify the country, wave upon wave of American soldiers
were deployed in the country. At the height of the war, around
126,000 American soldiers were stationed in the country. 7
39.
To house the growing number of US military personnel and
ensure their strategic deployment in the country, US President
Theodore Roosevelt issued an executive order in 1901
establishing the Subic Bay Naval Reservation while maintaining
the US Navy headquarters in Cavite. In 1902 President
Roosevelt signed another executive order establishing Fort
5
Ibid, at p. 208.
US Congressional Records, Senate 56th Congress, 1st Session, January 9, 1900,
pp. 704-712)
7
Renato Constantino, The Philippines: A Past Revisited : p. 241.
6
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MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Stotsenburg in the location that was later occupied by Clark
Airbase. Fort Stotsenburg was first used as a military camp by
US cavalry forces at the outbreak of the Philippine-American
War.
40.
The war that ensued was a brutal one. Estimates of those who
died range from a low of 12,000 to 20,000 Filipino combatants
and 200,000 to 600,000 civilians. 8
41.
The military victory enabled the United States of America to
establish control over the Philippines politically and
economically.
Successive military governors exercising
military, executive and civilian functions were appointed.
42.
The military governors eventually gave way to civilian
governors. A local legislature and judiciary were later
established. But it was only in 1946 that the Philippines
formally declared independence from the United States.
43.
In order to maintain the economic and political hold of the US
on the Philippines, the US military bases in the country
remained after the declaration of Philippine Independence.
44.
On March 14, 1947, the Philippines and the United States
through President Manuel Roxas and US Ambassador Paul V.
McNutt signed the Agreement Between the United States of
America and the Republic of the Philippines Concerning
Military Bases. The agreement entered into force on March 26,
1947.
45.
The Military Bases Agreement (MBA) gave the US government
the “right to retain the use of the (US) bases in the Philippines.”
The MBA granted the US forces the use of certain lands of the
public domain, free of rent, owing to the “mutual interests” of
both countries.
46.
The MBA gave the US control of at least 16 bases including
Clark Airbase and Subic Naval Base, as well as access to and
use of Philippine facilities such as the Mactan Island Army and
Navy Base and the Floridablanca Airbase in Pampanga.
8
Ibid., at p. 245.
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RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
47.
On March 21, 1947, Pres. Roxas and McNutt signed the RP-US
Military Assistance Agreement (MAA) which was considered a
sister agreement to the RP-US Military Bases Agreement
(1947). The MAA provided for the creation of the Joint U.S.
Military Advisory Group (JUSMAG), and the permanent
stationing of US military officials in Manila for the logistical and
training requirements of the Armed Forces of the Philippines.
48.
On August 30, 1951, representatives of the Philippines and the
US signed the Mutual Defense Treaty (MDT) in Washington
D.C. The MDT provided for mutual defense against external
armed attack. Under the MDT, “each Party recognizes that an
armed attack in the Pacific area on either of the Parties would
be dangerous to its own peace and safety and declares that it
would act to meet the common dangers in accordance with its
constitutional processes.”
49.
To provide a semblance of Philippine control of the American
bases, Olongapo, which was then an American territory, was
formally turned over by the US to the Philippines on October
28, 1959. In the succeeding years, 17 of the 23 military
installations operated by the US were also turned over to the
Philippines.
50.
On September 16, 1966, the US and Philippine governments
agreed to reduce the term of the bases treaty to 25 years
starting from that year and ending in 1991.
51.
Over the years, American military bases in the country served
as launching sites for US involvement in various wars such as
the war in Vietnam. The US bases also served supply storage,
repair and rest and recreation facilities for US military
personnel.
52.
The MBA Review of 1979 placed Clark and Subic under the
nominal ownership of the Philippine government, making them
US installations inside Philippine military installations. The
review also provided for each base to be formally under a
Filipino base commander. As supposed owners of the facilities,
the Philippines flew its flag in these bases together with the US
flag. The Philippine government also provided perimeter
security for the bases.
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MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
53.
In 1987, the Philippine Constitution was ratified, which explicitly
prohibits foreign military bases, troops, or facilities in the
country beyond the year 1991, except under a treaty concurred
in by the Senate.
54.
On September 16, 1991, the Philippine Senate exercising its
mandate under the Constitution, voted not to renew the bases
treaty. This supposedly signaled the end of US military
presence in the Philippines.
55.
But this was not the case. On May 27, 1999, the Philippine
Senate ratified the RP-US Visiting Forces Agreement (VFA)
which defined the treatment of visiting US troops who
participated in joint military exercises among other activities.
The VFA dealt with the issues of criminal jurisdiction, tax
exemptions and the movement of US troops and vessels.
56.
Petitioner Bayan challenged the VFA before the High Court by
claiming it was too broad and would allow the permanent
stationing of an unlimited number of troops, for an unlimited
time, and for undefined activities.
57.
However, the constitutionality of the VFA was upheld. This
paved the way for renewed US military presence in the country.
58.
On January 2002, the Philippines and the US began what was
known as Balikatan 02-1 which sent US troops to Mindanao to
assist Philippine forces in the “war on terror” against the Abu
Sayyaf. The Joint Task Force, which would later be known as
the Joint Special Operations Task Force Philippines (JSOTF-P),
was deployed in Mindanao. Some 600 US Special Forces
elements engaged in various anti-terror operations were being
rotated in Zamboanga, establishing a permanent and
continuing presence in the region, under the VFA.
59.
The 600 US Special Forces would remain stationed in Camp
Navarro in Zamboanga City till today, 12 years after their first
mission.
60.
Aside from those stationed in Camp Navarro in Zamboanga
City, US military personnel sporadically arrive in the Philippines
under the VFA to participate in military exercises or for rest and
recreation. With their presence in the Philippines, inevitably,
13
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
American military personnel would get involved in incidents
resulting to criminal offenses. One such case was the Subic
rape case which became the subject of the case decided by the
Honorable Court in Nicolas vs. Romulo. Another is the more
recent case of the killing of transgender woman Jennifer Laude
in Olongapo.
61.
On November 21, 2002, the Philippine and US governments
through Commodore Ernesto de Leon, Deputy Chief of Staff for
Plans, on behalf of the Armed Forces of the Philippines (AFP)
Chief of Staff, and Col. Mathias Velasco, representing the
Commander of the US Pacific Command, signed the MLSA at
Camp Aguinaldo. The pact dealing with logistic support for
visiting US troops and vessels was considered an executive
agreement not needing Senate ratification. The MLSA provided
for logistics services but did not allow the setting up of
permanent structures or facilities for US troops. The MLSA was
the second agreement after the VFA which would pave the way
for the return of US basing opportunities in the Philippines. The
MLSA had a term of 5 years and would be renewed by the
Arroyo government in 2007 and the Aquino government in
2012.
62.
On September 23, 2009, in light of the Subic rape case and
after hearings regarding the implementation of the VFA, the
Philippine Senate passed Resolution 1356 calling on the
Executive to renegotiate the VFA, and if the US refused, issue
a notice of termination of the agreement.
63.
On January 3, 2012, the US government through President
Barack Obama announced its strategic pivot towards Asia as
laid out in the document “Sustaining US Global Leadership,
Priorities for 21st Century Defense”.9
64.
Seeking to redeploy 60% of its warships to Asia, the US
revealed in said document that:
“U.S. economic and security interests are inextricably linked to
developments in the arc extending from the Western Pacific
and East Asia into the Indian Ocean region and South Asia,
creating a mix of evolving challenges and opportunities.
Accordingly, while the U.S. military will continue to contribute to
9
A copy is attached to the Petition as Annex “D”.
14
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RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
security globally, we will of necessity rebalance toward the
Asia-Pacific region.”
65.
Pursuant to the US’ strategic pivot to Asia, the first Ministerial
Dialogue was held in Washington D.C. on April 30, 2012 which
was attended by the Philippine Secretaries of the Departments
of National Defense and Foreign Affairs, as alter egos of
President Benigno Simeon Aquino III, and the US State
Department and Department of Defense.
66.
The dialogue ended with the Philippine delegation clearly upon
the instructions of Pres. Aquino, agreeing to adopt a policy of
“increased rotational presence” of US troops, increased military
exercises and more frequent port calls by US ships. Also
discussed therein was the granting to US military further access
to more areas in the Philippines including our air strips.
67.
In line with the strategic pivot to Asia, the US and the
Philippines held the first Ministerial Dialogue in Washington
D.C. on April 30, 2012. The dialogue included the Departments
of Defense and Foreign Affairs and the US State Department
and Department of Defense. The two countries adopted a
policy of “increased rotational presence” of US troops,
increased military exercises and more frequent port calls by US
ships. The two sides also discussed granting the US military
further access to areas in the Philippines including airstrips.
68.
On August 16, 2013, the US and the Philippines began
negotiations for the Framework Agreement for Increased
Rotational Presence and Enhanced Defense Cooperation
which sought to give the US military access to Philippine
facilities. The framework agreement was deemed in the form of
an executive agreement not needing the Philippine Senate’s
concurrence. The negotiators would eventually change the title
of the framework agreement to the Enhanced Defense
Cooperation Agreement (EDCA).
69.
The EDCA would be the third military agreement with the US
after the VFA which would secure new US basing opportunities
in the Philippines.
70.
On April 28, 2014, Philippine Department of National Defense
Secretary Voltaire Gazmin and United States Ambassador to
15
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
the Philippines Philip Goldberg signed the Enhanced Defense
Cooperation Agreement two hours before the arrival in Manila
of US President Barack Obama. The text of the agreement was
not disclosed during the Obama visit.
71.
It was only on April 29, 2014, a few hours after Obama left
Manila, that the text of the EDCA was made public for the first
time via the official government website www.gov.ph.
72.
Upon review, the petitioners learned that EDCA is so grossly
lopsided in favor of the US that the secrecy surrounding its
negotiations can only be viewed as an attempt to thwart any
criticism or even public debate regarding its content.
73.
Not only is EDCA grossly one-sided and greatly
disadvantageous to the Filipino people, EDCA also constitutes
a derogation of our country’s dignity and an unconscionable
sellout of our sovereignty.
74.
For entering into this morally shocking agreement and giving up
our sovereignty and national interest, the petitioners filed the
instant Petition on May 27, 2014.
75.
In a Resolution dated June 3, 2014, the instant petition was
consolidated with the petition entitled Rene A.V. Saguisag,
Wigberto E. Tañada, Francisco ‘Dodong’ Nemenzo, Jr., Sr.
Mary John Mananzan, et al vs. Executive Secretary Paquito
Ochoa, Department of Defense Secretary, Voltaire Gazmin,
Department of Foreign Affairs Secretary Albert del Rosario, Jr.
et al and docketed as G.R. No. 212426.
76.
On November 18 and 25, 2014, oral arguments were held.
Thereafter, the parties were directed to file their respective
memoranda.
77.
Hence, this memorandum.
78.
The Petitioners raise the following GROUNDS IN SUPPORT OF THE PETITION
16
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
I
A.
THE RESPONDENTS COMMITTED GRAVE ABUSE OF
DISCRETION WHEN THEY ENTERED INTO THE EDCA
AS IT CONSTITUTES A DEROGATION OF NATIONAL
SOVEREIGNTY AND TERRITORIAL INTEGRITY.
B.
RESPONDENTS COMMITTED GRAVE ABUSE OF
DISCRETION BY ENTERING INTO THE EDCA
BECAUSE IT CONTRAVENES OUR NATIONAL
INTEREST. EDCA IS ALSO CONTRARY TO PUBLIC
POLICY AND PUBLIC INTEREST.
II
RESPONDENTS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISIDICTION WHEN THEY SIGNED THE EDCA,
ESSENTIALLY
A
BASING
AGREEMENT,
IN
VIOLATION OF THE CONSTITUTION
AND
CONTRARY TO THE TENETS OF INTERNATIONAL
LAW.
III
EDCA
IS
NOT
IN
IMPLEMENTATION
OR
FURTHERANCE OF THE MUTUAL DEFENSE TREATY
AND THE VISITING FORCES AGREEMENT.
IV
EDCA IS CONTRARY TO VARIOUS PROVISIONS OF
THE CONSTITUTION AND OTHER LAWS.
ISSUES
79.
The Honorable Court in its resolution dated October 21, 2014,
defined the following issues for the oral arguments:
17
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
A.
Whether the petitioners have legal standing in the present
cases;
B.
Whether these cases and the issues raised are justiciable;
C.
Whether the Enhanced Defense Cooperation Agreement
(EDCA) is a treaty or an international agreement that requires Senate concurrence. In particular:
1.
Whether the provisions in EDCA pertaining to the presence of the United States personnel are already covered
and allowed under any existing treaty between the Republic of the Philippines and the United States of America; and
whether the treaty, if any, has already been concurred in by
the Senate. If so, whether any of the provisions under
EDCA modifies or amends any existing treaty between the
two countries;
2.
Whether the provisions in EDCA pertaining to the presence of equipment, supplies and materiel of the United
States Armed Forces are already covered and allowed under any existing treaty between the Republic of the Philippines and the United States of America; and whether any
such treaty has already been concurred in by the Senate. If
so, whether any of the provisions under EDCA modifies or
amends any existing treaty between the two countries;
3.
Whether the Agreed Locations pertained to in EDCA are
or should be considered akin to foreign military bases
or facilities.
If so, whether the provisions in EDCA pertaining to Agreed
Locations are already covered and allowed under any existing
treaty between the Republic of the Philippines and the United
States of America; and whether the treaty, if any, has already
been concurred in by the Senate. If so, whether any of the
provisions under EDCA modifies or amends any existing treaty
between the two countries;
If the Agreed Locations are not or should not be considered
akin to foreign military bases or facilities, or any variant thereof,
what are they and what are the legal justifications for allowing
their presence in the Philippines?
18
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
4. Whether the Constitution allows the presentation, for Senate concurrence, of separate provisions in an agreement
instead of the entire instrument;
5. Whether the Republic of the Philippines has already expressed its consent to be bound by the provisions of
EDCA; if it has, whether this Court can still invalidate EDCA
or any of its provisions;
B.
Whether petitioners may validly challenge the provisions
of the Mutual Defense Treaty and the Visiting Forces
Agreement in the present case.
C.
Whether there are limits to the constitutionally assigned
sphere of discretion of the President concerning foreign
relation matters;
D.
Whether the EDCA deprives the Supreme Court of its judicial power;
E.
Whether the petitioners are entitled to the reliefs requested.
ARGUMENTS AND DISCUSSION
Procedural Issues
80.
A.
The Petitioners have legal standing to file the
instant petition.
B.
The instant petition and the issues raised are
justiciable.
At the outset, Petitioners submit that they have locus standi to
file the instant Petition, having clear personal interests in the
matter under judicial review. The proceeding before this
Honorable Court involves the assertion and protection of a
public right and therefore “the requirement of personal interest
19
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
is satisfied by the mere fact that the petitioner is a citizen, and
therefore, a part of the general “public” which possesses the
right.”10
81.
Considering that EDCA would also require the disbursement of
public funds11 and waiver on the payment of taxes, fees, and
rentals, petitioners have locus standi as taxpayers. 12
82.
Additionally, Petitioner-Party List Representatives seek
recourse from the courts because an act of the Executive
injures the institution of Congress and causes a derivative but
nonetheless substantial injury.
83.
Respondents pray for the Court to dismiss the Petitions due to
Petitioners’ alleged lack of standing, upon the theory that the
silence of the Senate “mean[s] nothing less tha[n] a positive
endorsement of the EDCA as an executive agreement.”
84.
Granting that the Senate is indeed silent in the matter of EDCA
and that confirmation of its nature follows from such a silence,
Respondents’ theory brushes aside the true import of Section
25, Article XVIII. Indeed, no sitting member of the Senate is
before the Court, but it is undeniable that Petitioners are Filipino
citizens and elected Members of the House of Representatives.
85.
Considering that Section 25 lays down the restrictive conditions
for the exception to “the whole orientation of the Constitution x x
x against foreign military presence in Philippine territory,” 13 the
Constitution therein provides that the entire body having
legislative power, not just the Senate, has a say on whether
foreign military presence can be allowed to return to the
Philippines. This is the constitutionally mandated right—and
duty—of Congress as a whole and the people themselves
invoked by Petitioners in this case.
86.
Therefore, the standing of Petitioners, who are direct
representatives of the people and members of the Philippine
Legaspi vs. Civil Service Commission, 150 SCRA 530.
See EDCA at Article X, paragraph 1.
12
Ibid., at Article III, paragraph 3 and Article VII, paragraphs 2 and 3.
13
Page 176, “The New Bases Treaty: Political and Legal Issues; The Post-Cold
War Era and the Continuing US Military Presence” in “International law issues in
perspective,” Magallona, Merlin M.
10
11
20
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
citizenry themselves, stems from Section 25. Respectively,
they exercise the derivative and primary legislative power in the
matter of foreign military presence, but which power was
negated by the acts of the Respondents in entering into the
EDCA as a mere executive agreement.
87.
Indeed, legislators have a legal standing to see to it that the
prerogative, powers and privileges vested by the Constitution in
their office remain inviolate. Thus, they are allowed to question
the validity of any official action which, to their mind, infringes
on their prerogatives as legislators.14 It has been recognized
that a member of the Legislature has the requisite personality to
bring a suit where a constitutional issue is raised. 15
The Petition and the issues raised are justiciable.
88.
It is well to state at the outset that the facts and circumstances
prevailing in the present Petition are sufficient for this
Honorable Court to exercise its constitutional power of judicial
review.
89.
The legal requisites for judicial inquiry are the following: 16 (a)
there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act
must have the standing to question the validity of the subject
act or issuance; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of
constitutionality must be the very lismota of the case.
90.
First, there is an actual case or controversy.
In the recent case of Belgica v. Ochoa, (GR No. 208566,
November 19, 2013), the Honorable Court stated "By constitutional fiat, judicial power operates only when there
is an actual case or controversy. This is embodied in Section 1,
Article VIII of the 1987 Constitution which pertinently states that
Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA
1, 35; and Francisco v. House of Representatives, 460 Phil. 830, 842 (2003),
citing Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA
623, 631-632.
15
See for instance, Gonzales v. Macaraig, G.R. No. 87636. November 19, 1990,
citing Tolentino v. COMELEC, G.R. No. L-34150, 16 October 1961, 41 SCRA 702.
16
Dumlao vs Commission on Elections, 95 SCRA 392.
14
21
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
"judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable xxx." Jurisprudence provides that
an actual case or controversy is one which "involves a conflict
of legal rights, an assertion of opposite legal claims, susceptible
of judicial resolution as distinguished from a hypothetical or
abstract difference or dispute. In other words, "there must be a
contrariety of legal rights that can be interpreted and enforced
on the basis of existing law and jurisprudence." Related to the
requirement of an actual case or controversy is the requirement
of "ripeness", meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. "A
question is ripe for adjudication when the act being challenge
has had a direct adverse effect on the individual challenging it.
It is a prerequisite that something had been accomplished or
performed by either branch before a court may come into the
picture, and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the
challenged action." "Withal, courts will decline to pass upon
constitutional issues through advisory opinions, bereft as they
are of authority to resolve hypothetical or moot questions."
91.
The allegations in this Petition sufficiently show the existence of
a conflict and contrariety of legal rights and claims which are
susceptible of judicial resolution, and which can be interpreted
and enforced on the basis of existing law and jurisprudence.
92.
The present petition, filed under Rule 65 of the Rules of Court
or the special civil action of certiorari and prohibition, seeks to
set a right, undo and restrain any act of grave abuse of
discretion amounting to lack or excess of jurisdiction by the
Respondents, and likewise declare the EDCA unconstitutional;
and that the EDCA is essentially a basing agreement sans the
requirements under Section 25, Article XVIII of the Constitution.
93.
Thus, Petitioners allege that Respondents committed grave
abuse of discretion when they entered into the EDCA because
they failed to ensure the permanent inviolability of our national
territory and its effective control by the government and the
State as mandated by the Constitution.
94.
On the other hand, Respondents posit that their acts in entering
into the EDCA comply with the Constitution and the law,
whether local or international. In the main, Respondents argue
22
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
that the EDCA is a mere executive agreement which
implements the Mutual Defense Treaty and/or the VFA, as such
the constitutional requirement for Senate concurrence is
unnecessary. Moreover, they claim that when states enter into
international agreements, they surrender certain aspects of
their sovereignty.
95.
Clearly, there exists a conflict or controversy that requires the
exercise by the Honorable Court of its judicial power.
96.
The issues are ripe for adjudication. First, the EDCA has
already been signed by the respective representatives of both
the Philippines and the US governments. Second, the Acting
Solicitor General already confirmed that the EDCA is already in
force since it has already been ratified by the President on June
6, 2014 and in the case of the US, it “considers the EDCA to
have entered into force on the 25 th of June 2014, as reflected in
its diplomatic note of the same date.17”
97.
Verily, there now exists an immediate or threatened injury to
Petitioners as a result of the grave abuse of discretion and
unconstitutional acts of Respondents. As such, any decision or
resolution of this Honorable Court will not in any way be
considered as advisory opinion.
98.
Second, to reiterate, Petitioners have successfully shown their
legal standing in filing this case, and their position is very much
supported by jurisprudence.
99.
In La Bugal-B'laan case (465 Phil. 860, 890 (2004)), quoted in
the Belgica case, the Honorable Court stated,
"The gist of the question of standing is whether a party alleges
such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for
illumination of difficult constitutional questions. Unless a person
is injuriously affected in any of his constitutional rights by the
operation statute or ordinance, he has no standing."
17
See TSN dated November 25, 2014 at p. 7.
23
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
100. The Petitioners are bringing this case in their capacity as
citizens of the Republic asserting a public right, that is, the
fundamental right guaranteed by the Constitution and which
right stands to be prejudiced by the unconstitutional acts of
Respondents. Thus, the issue being one which involves the
assertion and protection of a public right, therefore, the
requirement of personal interest is already satisfied.
101. In the Belgica case, the Court therein upheld Petitioners'
standing who sued as citizens, considering that the issues
raised therein may be classified as matters of transcendental
importance, of overarching significance to society, or of
paramount public interest. The same standard applied in
Belgica must be used in this present Petition.
102. Petitioners are also bringing this case in the form of taxpayers'
suit, alleging that the implementation of EDCA involves
disbursement of public funds and waiver on the payment of
taxes, fees and rentals. Clearly, as taxpayers, they possess the
requisite standing to question the validity of the EDCA, bound
as they are to suffer from the unconstitutional wastage of public
funds or failure by the government to collect taxes, fees and
rentals by virtue of such waiver.
103.
Finally, the question of constitutionality was raised at the
earliest opportunity, and the issue of the constitutionality of the
EDCA is the very lismota of the case, being as it is, a case filed
under Rule 65 of the Rules of Court.
104.
In the recent case of Araullo v. Aquino (GR No. 209287, July
1, 2014), this Honorable Court had the occasion to discuss the
concept of expanded power of judicial review. In the Separate
Opinion of Justice Brion in the case, he presented a treatise on
the concept of the Court's expanded power of judicial review.
According to him,
"Under the expanded judicial power, justiciability expressly
and textually depends only on the presence or absence of
grave abuse of discretion, as distinguished from a situation
where the issue of constitutional validity is raised within a
“traditionally” justiciable case which demands that the
requirement of actual controversy based on specific legal rights
must exist. Notably, even if the requirements under the
24
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
traditional definition of judicial power are applied, these
requisites are complied with once grave abuse of discretion is
prima facie shown to have taken place. The presence or
absence of grave abuse of discretion is the justiciable issue to
be resolved.
Necessarily, a matter is ripe for adjudication under the
expanded judicial power if the assailed law or rule is already in
effect. If something had already been accomplished or
performed by the Legislative and/or the Executive, and the
petitioner sufficiently alleges the existence of an immediate or
threatened injury to itself as a result of the challenged
action, then the controversy cannot but already be ripe for
adjudication.
In the expanded judicial power, any citizen of the Philippines
to whom the assailed law or rule is shown to apply necessarily
has locus standi since a constitutional violation constitutes an
affront or injury to the affected citizens of the country. If at all, a
less stringent requirement of locus standi only needs to be
shown to differentiate a justiciable case of this type from the
pure or mere opinion that courts cannot render.
The traditional rules on hierarchy of courts and
transcendental importance, far from being grounds for the
dismissal
of
the
petition
raising the
question
of
unconstitutionality, are necessarily reduced to rules relating to
the level of court that should handle the controversy, as
directed by the Supreme Court.
Thus, all courts have the power of expanded judicial review, but
only when a petition involves a matter of transcendental
importance should it be directly filed before this Court.
Otherwise, the Court may either dismiss the petition or remand
it to the appropriate lower court, based on its consideration of
the urgency, importance, or the evidentiary requirements of the
case.
In other words, petitions – in order to successfully invoke the
Court’s power of expanded judicial review – must satisfy two
essential requisites: first, they must demonstrate a prima facie
showing of grave abuse of discretion on the part of the
governmental body’s actions; and second, they must prove that
they relate to matters of transcendental importance to
the nation.
25
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
The first requirement
exercise of expanded
requirement justifies
relaxation of standing
citations removed)
establishes the need for the Court’s
judicial review powers; the second
direct recourse to the Court and a
requirements." (Underscoring supplied;
105. Measured by the foregoing standards, that is, the
demonstration of a prima facie showing of grave abuse of
discretion on the part of the government and the existence of
matters which are of transcendental importance to the nation,
the Petition has sufficiently proven the need for the exercise of
the judicial power of review.
SUBSTANTIAL ISSUES
I. THE PRESIDENT COMMITTED GRAVE ABUSE OF DISCRETION WHEN HE ENTERED INTO THE EDCA WITHOUT
COMPLYING WITH THE REQUIREMENTS UNDER SECTION
21, ARTICLE VII AND SECTION 25, ARTICLE XVIII OF THE
CONSTITUTION.
THE EDCA IS A TREATY OR AN INTERNATIONAL
AGREEMENT THAT REQUIRES SENATE CONCURRENCE.
A.
The status of EDCA as a treaty
or a mere executive agreement has
no
bearing
for
purposes
of
compliance with Section 21, Article
VII of the Constitution.
-------------------------------------------------i.
106.
The respondents, in an effort to circumvent the requirements of
the Constitution, argue that the EDCA is a mere executive
agreement and not a treaty; allegedly, therefore, senate
concurrence is not required.
107.
At the outset, it is submitted that the characterization of EDCA
as a treaty or an executive agreement has no bearing for
purposes of being an international instrument that is valid and
effective upon the Philippine government.
26
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
108.
In international law, there is no difference between treaties,
executive agreements, and other international agreement as to
their binding effect upon states concerned, as long as the
negotiating functionaries have remained within their powers. 18
109.
Under the Vienna Convention on the Law of Treaties, the
distinction has no bearing since an international agreement has
the binding and enforceable effect of a treaty regardless of its
name.
110.
Thus, Section 1 (a), Article 2 of the aforesaid Vienna
Convention defines treaty as “an international agreement
concluded between State in written form and governed by
international law, whether embodied in a single instrument or in
two or more related instruments and whatever its particular
designation.”19
111.
On this phrase, author Anthony Aust noted that the content of
an instrument—not its name—determines the status of the
instrument as one having a binding character under
international law:
“It is often more a matter of the practice of
international organisations or groups of states, or
political preference, which determines how a treaty is
named. But whatever the position may have been in the
nineteenth and early twentieth centuries, in itself the
name does not determine the status of the
instrument; what is decisive is whether the
negotiating states intend the instrument to be (or not
to be) binding in international law. Thus, just as one
should never judge a book by its cover, one should
never assume that the name given to an international
instrument automatically indicates its status either as
a treaty or as an MOU. Although it is reasonable to
assume that an instrument called a treaty, agreement or a
convention is a treaty, one should nevertheless examine
the text to make quite sure.”20
Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE Veterans
Association Inc. vs. Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959]
19
Emphasis supplied.
20
Modern Treaty Law and Practice, page 20 (Cambridge University Press, Third
Edition 2013). Emphasis supplied.
18
27
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
112. An examination of the text of EDCA reveals all the hallmarks of
the Parties’ intention to be bound in obligations under international law. In the preambular clauses, they refer to the UN
Charter, international conventions, and their previous bilateral
agreements—all of which are considered treaties following the
Vienna Convention. They also invoke doctrines of international
law such as the principles of self-help and settlement of conflicts by peaceful means, on paper, at least, as the purpose of
EDCA.
113.
Petitioners note that even a lead member of the Philippine negotiating panel for the EDCA confirms that the treaty status of
an agreement is determined by its content and not its designation. In his Philippine Treaty Law and Practice, Ambassador
Eduardo Malaya wrote:
“The title of the instrument does not determine the nature
of the instrument. What is determinative is the intent
of the negotiating states to be legally-binding or not.
It is only by examining its specific provisions can its
real nature be established.”21
114. Second, the particular status of EDCA has also no bearing—
even within the sphere of domestic law—on the issue of its
validity and effectivity, considering the 1987 Constitution’s allencompassing, non-distinguishing language:
“No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the
Members of the Senate.”22
115.
This provision should be read with Executive Order No. 459,
series of 1997,23 which defines executive agreements as “similar to treaties except that they do not require legislative concurrence.”24 Treaties, on the other hand, are those international
agreements that “require legislative concurrence after executive
ratification.”25 International agreement, therefore, subsumes
Co-authored with Maria Antonina Mendoza-Oblena. Published in the Integrated
Bar of the Philippines Journal. , Vol. 35, No. 1, August 2010.
22
Section 21, Article VII.
23
Providing for the Guidelines in the Negotiation of International Agreements and
[Their] Ratification, 25 November 1997.
24
Section 2 (c).
25
Section 2 (b).
21
28
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
treaties and executive agreements, being the general concept
for instruments having international character.
116.
It is submitted that following this general constitutional provision
on international instruments, all international agreements, treaties and executive agreements, are not valid and effective except if these instruments are concurred in by the Senate. Petitioners echo the view espoused by Senator Miriam Defensor-Santiago, Chairperson of the Senate Committee on Foreign Relations, at the hearing conducted by the Senate on the
EDCA December 1, 2014:
“Today, let us start, first of all, with the provision on the
Constitution on x xxArticle VII, Section 21, “No treaty or
international agreement”—Kaya mahirap itong intindihin. Ano
ang agreement o dokumento na hindi pwedeng pumunta
sa Senado because the Constitution uses the very broad
phrase “or international agreement.”Ano pang agreement
ang hindi pwede diyan. “No treaty.”O maliwanag tayo, pag
treaty hindi pwede. Pero pati international agreement.“No
treaty, no international agreement shall be valid and
effective...”—hindi lamang “valid or effective” kung hindi “valid
and effective”—“... unless concurred in by at least two—thirds
of the members of the Senate.” Ay ‘di ibig sabihin pala kung
baligtarin mo ito kung walang concurrence—and be careful, x
xx we do not ratify a treaty. It is the President who ratifies a
treaty and the Senate merely concurs with the ratification.
Having clarified that, let us pay very careful attention to the
wording of our Constitution since it says, “No treaty or
international agreement shall valid and effective.” Both “valid”
and “effective” are words you find here. So both the validity,
the effectivity depends on the concurrence of the Senate.
Ibig sabihin, kung walang concurrence ang Senado,
walang validity at walang effectivity.”26
117.
Following Senator Santiago’s view, therefore, EDCA, whether
treaty or executive agreement, is neither valid nor effective
absent and prior to the Senate concurrence. Therefore, in the
eyes of the Constitution, EDCA is invalid and ineffective, or at
the very least, presently in “suspended animation,” to borrow
“Inquiry, in Aid of Legislation, on the Enhanced Defense Cooperation Agreement
(EDCA)” held on 1 December 2014.Pages 6, Transcript of Stenographic Notes and
hereto attached as Annex “A”
26
29
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
the words of Former Senator Saguisag, one of the Petitioners
herein and also a resource person in said hearing. 27
ii. The EDCA must be in the
form of a treaty duly concurred
in by the Senate.
-------------------------------------------118. The issue of EDCA’s particular status—whether a treaty or an
executive agreement—arises in relation to the necessity of the
application of the other constitutional provision on international
instruments, this time, the specific law governing foreign military
bases, troops, or facilities or Section 25 of Article XVIII.
119.
Respondents insist that this provision on international instruments and the strict requirements thereunder do not apply to
EDCA because the same is a “mere executive agreement.” 28
120.
First, Petitioners dispute Respondents’ characterization of
EDCA. In the case of Commissioner of Customs v. Eastern
Sea Trading, 29 the Honorable Court made a distinction of what
can be covered by treaties as compared to executive
agreements. Thus,
“[I]nternational agreements involving political issues or changes
of national policy and those involving international arrangements of a permanent character usually take the form of treaties [while] those embodying adjustments of detail carrying out
well established national policies and traditions and those involving arrangements of a more or less temporary nature take
the form of executive agreements.”
121.
Furthermore, DFA Office Order No. 01-2007 also listed the categories of agreements which by practice have been treated as
treaties and thus requiring Presidential ratification and Senate
concurrence before they can enter into force: 30
a. Status of Forces Agreements/Visiting Forces Agreement;
Page 55, TSN Senate hearing hereto attached as Annex “A-1”
Pages 10 and 15, Consolidated Comment of the Office of the Solicitor General.
29
G.R. No. L-14279, 1961.
30
J. Eduardo Malaya and Maria Antonina Mendoza-Oblena, Philippine Treaty Law and
Practice, Integrated Bar of the Philippines Journal, 35: 1, August 2010, pp. 1–17.
27
28
30
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
b. Free Trade Agreement/Economic Partnership Agreement
(which go beyond what the President is allowed to undertake
unilaterally under Article VI Sec. 28 (2) of the Constitution
and the Customs and Tariff Code);
c. Avoidance of Double Taxation Agreements (since tax exemptions may be made only under the authority of Congress, Article VI Sec. 28 (4) of the Constitution);
d. Headquarters Agreement (due to immunity aspects);
e. Extradition Agreements;
f. Transfer of Sentenced Persons Agreements (in as much as
Philippine criminal jurisdiction is based on the principle of
“territoriality”);
g. Other agreements, especially multilateral conventions, involving political issues or changes of national policy and involve international arrangement of a permanent character
(Eastern Sea Trading ruling).31
122.
Executive Order (E.O.) 459 also provides the guidelines in the
negotiation of international agreements and its ratification. It
states that as a matter of policy, the negotiation of all treaties
and executive agreements shall be coordinated with, and made
only with the participation of the DFA.32
123. It is submitted that the characterization of the Executive Branch
of an instrument as an executive agreement, to be binding upon
the entire government, should be done officially following E.O.
No. 459:
“Section 9. Determination of the Nature of the Agreement. –
The Department of Foreign Affairs shall determine whether an
agreement is an executive agreement or a treaty.”
124. It is further submitted that the specification by the Executive
Branch of a certain device by which it officially determines the
nature of an agreement it enters into excludes other means,
such as bare declarations that an instrument is a “mere executive agreement.”
125. Respondents have not submitted to the Court such an official
determination. The people are left to rely on the Executive’s
bare allegation—and a hollow one because such characterization is merely claimed, divorced from the actual context and
31
32
DFA Office Order No. 01-2007, in Malaya, note 156.
Executive Order No. 459 (2005), § 1.
31
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
substance of the instrument—that EDCA is a mere executive
agreement.
126. During the oral arguments, in fact, the Solicitor General gave
the Court a mere assumption that Section 9 was complied with:
ASSOCIATE JUSTICE REYES:
[I]n 1997, Executive Order 459 was issued and under Section 9 thereof, the
Department of Foreign Affairs determines the nature of an agreement. My
question is, were these procedures complied with before the EDCA was
signed by the Secretary of National Defense?
ACTING SOLICITOR GENERAL HILBAY:
I have to assume, Your Honor, that under E.O. 459, the Secretary of
Foreign Affairs had made a declaration that the EDCA is an executive
agreement.33
127.
Second, a submission as to the proper reading of the Constitution: What activates the application of Section 25 of Article
XVIII and all its strict requirements is the nature or substance of
any post -1991 MBA agreement as one concerning foreign military bases, troops, or facilities—not the agreement’s designation
on paper as an “Agreement x xx Enhanced Defense Cooperation” or on bare public statements that EDCA is a mere “executive agreement.”
128.
The concept of international agreements under the coverage of
Section 25 is not dependent on the practice between the political departments, as the OSG would have it. 34 This postion gives
undue import to the mere "practice of groups of states, or political preference,” to use Aust’s words, instead of the actual
nature of international agreements, and makes the requirements of the Constitution secondary to artificial factors and considerations of politics.
129.
E.O. 459 does not consider the concept of treaty dependent on
the parties’ characterization, more so the Constitution. Otherwise, Section 25, along with the people’s will against war and
foreign presence and aspirations for sovereignty and national
interest, all of which are the very reasons behind Section 25,
33
TSN of Oral Arguments, 25 November 2014, pages 132 to 133.
Ibid., page 23.
34
32
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
will be rendered vulnerable to and even negated by the whims
and artifices of these political departments.
130.
Petitioners submit, therefore, that where an agreement concerns foreign military bases, troops, or facilities, such agreement should be in the form of a treaty and must go through the
rigors of Section 25, Article XVIII of the Constitution.
131.
Indeed, the fundamental law’s strict general prohibition against
foreign military presence must not be swept aside through invocation of mere artifices in names and myths that hide actual
facts and dispute historical context, such as the false designations given to EDCA (an “executive agreement” that merely “implements” VFA), the myth of Philippine ownership of Agreed
Locations per the “control test” put forth by the OSG, 35 and the
myth of “temporary” or “rotational” presence of American military forces on Philippine soil.
The Secretary of the Department of
National Defense has no power and
authority to enter into international
agreements.
-----------------------------------------------------132.
The Department of National Defense (DND) acts officially
through its head, the Secretary of National Defense. 36
Ibid., at page 9.
Doctrine of Qualified Political Agency. Manalang-Demigillo v. Trade and
Investment Development Corporation of the Philippines, G.R. No. 168613, 5 March
2013, citing Villena v. The Secretary of the Interior, 67 Phil. 451, 463-464 (1939). The
doctrine of qualified political agency essentially postulates that the heads of the various
executive departments are the alter egos of the President, and, thus, the actions taken
by such heads in the performance of their official duties are deemed the acts of the
President unless the President himself should disapprove such acts. This doctrine is in
recognition of the fact that in our presidential form of government, all executive
organizations are adjuncts of a single Chief Executive; that the heads of the Executive
Departments are assistants and agents of the Chief Executive; and that the multiple
executive functions of the President as the Chief Executive are performed through the
Executive Departments. The doctrine has been adopted here out of practical necessity,
considering that the President cannot be expected to personally perform the multifarious
functions of the executive office.
35
36
33
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
133.
134.
The Secretary of National Defense is a member of the National
Security Council, the Executive Committee 37 thereof, and is
also the Chairman of the General Military Council. 38
The DND is tasked to formulate programs and policies
necessary to maintain the integrity of the State and to guard
against external and internal threats.39
135. Through supposedly sound advice and accurate information,
the DND assists the President to arrive at the appropriate
37
Executive Order 292, Revised Administrative Code, Title VIII, Subtitle I, Chapter
2, — National Security Council XXXXX
SECTION 2. Declaration of Policies. — (1) The formulation of integrated and
rationalized national, foreign, military, political, economic, social and educational
policies, programs, and procedures vital to the security of the state.
(2)
The national interest requires that an agency exist to formulate and adopt
policies, programs, and procedures on all matters pertaining to or affecting the national
security so that judgments and actions thereon by the President may rest on sound
advice and accurate information.
SECTION 3. Mandate. — The National Security Council shall serve as the lead agency
of the government for coordinating the formulation of policies, relating to or with
implications on the national security.
SECTION 4. Composition. — The National Security Council, hereinafter referred to as
Council, shall be composed of the President as Chairman, the Vice-President, the
Secretary of Foreign Affairs, the Executive Secretary, the Secretary of National Defense,
the Secretary of Justice, the Secretary of Labor and Employment, the Secretary of Local
Governments, the National Security Director, the Chief of Staff of the Armed Forces of
the Philippines (AFP), and such other government officials and private individuals as the
President may appoint.
SECTION 5. Powers and Functions. — In addition to such specific duties and
responsibilities as the President may direct, the Council shall:
(1)
Advise the President with respect to the integration of domestic, foreign, military,
political, economic, social, and educational policies relating to the national security so as
to enable all concerned departments and agencies of the government to meet more
effectively, problems and matters involving the national security;
(2)
Evaluate and analyze all information, events, and incidents in terms of the risks
they pose or implications upon or threats to the overall security and stability of the
nation, for the purpose of recommending to the President appropriate action thereon;
(3)
Formulate and coordinate the implementation of policies on matters of common
interest to the various departments, and agencies of the government concerned with the
national security, and make recommendations to the President in connection therewith;
(4)
Insure that policies adopted by the Council on national security are effectively
and efficiently implemented; and
(5)
Make such recommendations or render such other reports as the President may
from time to time require.
SECTION 6. Executive Committee. — The Council shall have an Executive Committee
composed of the President as Chairman, and the Vice-President and Secretary of
Foreign Affairs, the Executive Secretary, the Secretary of National Defense, the National
Security Director, the Chief of Staff of the Armed Forces of the Philippines and such
other members or advisers as the President may appoint from time to time.
The Executive Committee shall review national security and defense problems and
formulate positions or solutions for consideration by the Council. It shall determine the
agenda and order of business of the Council, and shall ensure that decisions of the
Council are clearly communicated to the agencies involved. It shall advise the President
on the implementation of decisions.
34
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
judgment and actions based on the formulated policies affecting
national security.
136. A plain reading of the entire Title VIII on National Defense of
Executive Order 292 (EO 292), otherwise known as the
Revised Administrative Code, grants no power or authority unto
the Secretary of National Defense to conclude international
agreements.
137. The Secretary of National Defense is tasked merely to
formulate policies relating to national security and to advise the
President on these matters on the basis of reliable information.
138. The Doctrine of Qualified Political Agency states that the acts of
Department Heads are deemed the acts of the Chief Executive
but only to the extent that they are acting within their
designated functions.
139.
As held in Villena v. The Secretary of the Interior,40
140.
The doctrine of qualified political agency essentially postulates
that the heads of the various executive departments are the
alter egos of the President, and, thus, the actions taken by such
heads in the performance of their official duties are deemed
the acts of the President unless the President himself should
disapprove such acts. XXXXX
141.
Since the Secretary of National Defense is not empowered or
authorized under the Revised Administrative Code to enter into
To carry out the functions of the Executive Committee, the Chairman shall utilize the
facilities and expertise of any of the government agencies and instrumentalities and shall
promulgate rules and regulations to govern the operations of the Executive Committee.
38
Executive Order 292, Revised Administrative Code, Title VIII, Subtitle II, Chapter
1, Section 16. General Military Council. — The General Military Council shall advise and
assist the Secretary in the formulation of military policies and shall consider and report
on such other matters as the Secretary may direct. The Council shall be composed of
the Secretary as Chairman; and the Undersecretary of National Defense, the Chief of
Staff, the Vice-chief of Staff, the Assistant Chief of Staff of the Armed Forces of the
Philippines, and the Commanders of the Major Services, as members. The Deputy Chief
of Staff of the Armed Forces of the Philippines shall be the Secretary of the Council.
39
Executive Order 292, Revised Administrative Code, Title VIII, Subtitle II, Chapter
1, Section 15. Declaration of Policy. — The defense establishment shall be maintained
to maximize its effectiveness for guarding against external and internal threats to
national peace and security and provide support for social and economic development.
40
67 Phil. 451, 463-464 (1939).
35
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
treaties or executive agreements, it is clear that he overstepped
his prerogatives and any actions in this regard are ultra vires.
142. Even if the President were somehow to validate the Secretary
of National Defense’s actions in acceding to the EDCA, the said
document still runs afoul of the 1987 Philippine Constitution due
to non-compliance with the requirements for a basing
agreement under Article XVII, Section 25 as fully explained and
elaborated upon in the herein Petitions and the Oral Arguments
conducted.
B. THE EDCA IS NOT AN IMPLEMENTING AGREEMENT
OF THE MDT AND THE VFA
143. Respondents argue that the EDCA is just an implementing
agreement of the MDT and the VFA. And since the Senate had
already given its concurrence to both the MDT and the VFA, it is
no longer necessary to obtain Senate concurrence for EDCA.
144. According to the respondents, Article II of the MDT which states
that “the Parties separately and jointly by self-help and mutual
aid will maintain and develop their individual and collective capacity to resist armed attack” authorizes the Philippines and the
United States to enter into implementing agreements to undertake what respondents refer to as “defensive preparation” activities.
145.
The EDCA, respondents argue, merely implements such “defensive preparation” activities already authorized under the
MDT. Such claim has no factual and legal basis.
146.
It must be emphasized that the “defensive preparation” activities that respondents claim to have been authorized by the MDT
and merely implemented by EDCA are activities that necessitate the presence of US military troops and facilities in the
country.
147. As provided for under Article III of EDCA:
1. With consideration of the views of the Parties, the
Philippines hereby authorizes and agrees that United State
forces, United States contractors, and vehicles, vessels, and
36
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
aircraft operated by or for United State forces may conduct
the following activities with respect to Agreed Locations:
training; transit; support and related activities; refueling of
aircraft; bunkering of vessels; temporary maintenance of
vehicles, vessels and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment,
supplies and materiel; deploying forces and materiel; and
such other activities as the Parties may agree.
148. Given the variety and extent of such activities that respondents
claim to have already been authorized by the MDT more than
sixty years ago, it is necessary to look into the situation when
the MDT was entered into by the Philippines and the United
States.
149.
And what stands out is that the MDT was entered into at a time
when there was no prohibition on “foreign military bases, troops
or facilities” that is now found in Section 25 Article XVIII of the
Constitution. As aptly noted by Dean Merlin Magallona, (t)he
prohibition is not qualified by any means as to how the treaty is
related to any existing agreement.”41
150. Under the present Constitution, even granting for the sake of
argument that the EDCA is not a basing agreement, whatever
claimed “defensive preparation” activities are allowed under the
MDT which would necessitate the presence of foreign military
troops or facilities in the country ARE NO LONGER ALLOWED
after 1991 unless the presence of such foreign military troops or
facilities are provided for in a “treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national
referendum held for that purpose and recognized as a treaty by
the other contracting State.”
151. Given this prohibition, the “implementing agreement” argument
put forth by the respondents totally ignores the fact that
between the MDT and the EDCA, the overwhelming majority of
the Filipino people ratified the 1987 Constitution.
From his paper “A Critical Review of the Enhanced Defense Cooperation
Agreement Between the Philippines and USA” a copy of which is hereto attached as
Annex “B.”
41
37
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
152. Simply put, the presence of US military troops or facilities can
never be allowed by a mere implementing agreement of the
MDT as argued by the respondents.
153.
Respondents also argue that the EDCA is an implementing
agreement of the VFA. According to respondents, the presence
of US military troops and equipment are already authorized by
the VFA. Furthermore, respondents argue that the activities to
be undertaken under EDCA are within the ambit of the VFA as
ruled in the case of Lim vs. Executive Secretary (G.R. No.
151445, April 11, 2002). In this case, the Honorable Court
ruled that the term “activities” under the VFA were deliberately
made ambiguous “to give both parties a certain leeway in
negotiation...Both the history and intent of the Mutual Defense
Treaty and the VFA support the conclusion that combat-related
activities – as opposed to combat itself – such as the one
subject of the instant petition, are indeed authorized.”
154.
A plain reading of the text of EDCA will easily reveal that it is
not simply an implementing agreement of the VFA. The
following are matters that are covered by EDCA but are not
provided for under the VFA:
a. First, under Article I of the VFA, only US military and civilian
personnel are allowed admission into the Philippines in
connection with activities covered by the VFA. Under EDCA,
however, in addition to US military and civilian personnel, US
contractors42 are also authorized to conduct activities
enumerated in Article III No. 1 of the EDCA. They are given
“unimpeded access to Agreed Locations for all matters relating
to the prepositioning and storage of defense equipment,
supplies, and materiel, including delivery, management,
inspection, use, maintenance, and removal of such equipment,
supplies and materiel.”43
Furthermore “United States
contractors may carry out such matters in accordance with,
and to the extent permissible under, United States laws,
regulations, and policies.”44
b. Second, the VFA has NO provision authorizing access to
Agreed Locations provided for by EDCA. 45
42
43
44
45
Article II No. 3 EDCA
Article IV No. 4 EDCA
Article IV No. 5 EDCA
Article I No. 1 (b); Article II No. 4; Article III EDCA
These Agreed
38
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Locations, or any portion thereof, shall be returned to the
Philippines ONCE NO LONGER REQUIRED BY UNITED
STATES FORCES FOR ACTIVITIES under EDCA. 46
Furthermore, EDCA provides that the “United States forces are
authorized to exercise all rights and authorities within Agreed
Locations that are necessary for their operational control or
defense including taking appropriate measures to protect
United States forces and United States contractors.” 47
c. Third, the VFA has NO provision authorizing the United States
to undertake construction activities48 of non-relocatable
structures and assemblies49, and permanent buildings50. These
non-relocatable structures and assemblies, like the buildings,
are permanent in character and are included in the Agreed
Locations that shall be returned to the Philippines once no
longer required by the United States forces. These nonrelocatable structures and assemblies that the United States
are allowed to construct under EDCA can rightfully be classified
as foreign military facilities that come within the prohibition of
Section 25 Article XVIII of the Constitution.
d.
Fourth, while the VFA contains provisions on the importation
and exportation of equipment, supplies, materials and other
property in connection with the activities under the VFA, it has
NO provision authorizing the United States to preposition and
store defense equipment, supplies and materiel. 51
These
prepositioned materiel “shall be for the exclusive use of United
States forces” to which they “shall have control over the access
to and disposition of... and shall have the unencumbered right
to remove.., at any time from the territory of the Philippines.” 52
e. Fifth, the VFA has NO provision granting the “United States
forces and United States contractors the use of water,
electricity, and other public utilities… less charges or taxes and
similar fees, which shall be for the account of the Philippine
Government.”53
46
47
48
49
50
51
52
53
Article V No. 2 EDCA
Article VI No. 3 EDCA
Article III No. 4 and 6 EDCA
Article V No. 2 EDCA
Article V No. 4 EDCA
Article IV No. 1 EDCA
Article IV No. 3 EDCA
Article VII No. 2 EDCA
39
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
f. Sixth, Article V of the VFA provides for criminal jurisdiction of
US personnel in the Philippines for activities under the VFA and
Article VI provides that both the governments of the
Philippines and the United States waive any and all claims
against each other for damage or destruction of property of
each other’s armed forces or for death or injury to their military
or civilian personnel from activities to which the VFA applies.
Article XI of EDCA on the other hand provides an
encompassing provision as the “Parties agree to resolve any
dispute arising under this Agreement exclusively through
consultation.” (emphasis supplied)
155. As mentioned earlier, even a textual comparison of the EDCA
and the VFA will readily show that the EDCA provides for
matters that are not provided for by the VFA. On this score
alone, the respondents’ argument that the EDCA merely
implement the VFA clearly does not have a leg to stand on.
156.
With respect to the respondents’ contention that the activities to
be conducted under the EDCA are already authorized under
the VFA pursuant to the ruling in Lim vs. Executive Secretary,
such argument is not in accord with the factual circumstances
of the case.
157.
In Lim vs. Executive Secretary, what was at issue was
whether the “Balikatan 02-01” was covered by the VFA. The
Terms of Reference (TOR) of the “Balikatan” exercise provides
that:
I.
POLICY LEVEL
XXX
5. The exercise shall be conducted and completed
within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP
forces….
6. The exercise is a mutual counter-terrorism
advising, assisting and training exercise relative to
Philippine efforts against the ASG, and will be conducted
on the Island of Basilan. Further advising, assisting and
training exercises shall be conducted in Malagutay and
the Zamboanga area. Related activities in Cebu will be for
support of the Exercise.
40
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
158.
From the above-quoted TOR, it is readily apparent that the
activities are to be conducted during a joint military exercise,
with a definite number of troops, for a definite duration and for
definite area/s.
159.
It is these activities that the decision in Lim vs. Executive
Secretary refer to as within the contemplation of combatrelated activities authorized under the VFA. The Department of
National Defense, in its Frequently Asked Questions on EDCA
concedes that “the VFA lays out the terms an conditions on the
entry and visit of US military personnel for military
exercises.”54 (emphasis supplied)
160. To illustrate, the prepositioning of defense materiel is
authorized under Article IV of EDCA which provides that “(t)he
prepositioned materiel of United States forces shall be for the
exclusive use of United States forces….. United States forces
shall have control over the access to and disposition of such
prepositioned materiel and shall have the unencumbered right
to remove such prepositioned materiel at any time from the
territory of the Philippines.”
161. Owing to the exclusive use by the United States forces of such
prepositioned materiel, it can be easily deduced that such
prepositioning of defense materiel has nothing to do with joint
military exercises. Consequently, such prepositioning of
defense materiel is not among the “activities” contemplated
under the VFA. It cannot, therefore, be said that EDCA is
merely an implementing agreement of the VFA.
162. Furthermore, the argument that all manner and kinds of
activities even those not within the context of joint military
exercises are allowed by the VFA and by extension the EDCA,
goes against the very provision of the Constitution that seeks to
prohibit foreign military bases, troops or facilities.
163. To illustrate this point, EDCA authorizes the construction by US
forces of non-relocatable structures, assemblies and permanent
buildings under Article III No. 4 and 6 and Article V No. 2.
Following the respondents’ arguments, construction activities
54
http://www.dnd.gov.ph/pdf/EDCAFAQs
41
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
are among the activities already approved under VFA, hence,
such provision under EDCA is allowed even though EDCA has
no Senate concurrence.
164. The flimsiness of such argument can readily be seen by the fact
that there is no provision in the VFA that authorizes the
construction activities by US forces of non-relocatable
structures, assemblies and permanent buildings – which can be
rightly classified as foreign military facilities. Since Section 25 of
Article XVIII of the Constitution prohibits foreign military facilities
without a treaty duly concurred in by the Senate, the term
“activities” under the VFA shall be strictly construed and cannot
be overstretched to include construction activities. By
consequence, such construction activities by US forces under
EDCA do not merely implement the VFA and is contrary to the
Constitution.
165.
In sum, the VFA contemplates joint military exercises only of a
short duration. The VFA does not include the conduct of
activities such as prepositioning of equipment, supplies and
materiel; deployment of forces and materiel; storing of defense
equipment, supplies and materiel. It does not also allow or
include building or construction activities and improvement of
facilities.
166. For the above-stated reasons, clearly EDCA cannot be justified
as a mere extension or implementing agreement of the VFA
and the MDT.
C.
THE RIGHTS AND AUTHORITIES GRANTED TO THE
UNITED STATES UNDER THE MBA ARE SIMILAR TO THE
RIGHTS, AUTHORITIES AND PRIVILEGES GRANTED TO US
FORCES UNDER THE EDCA.
The EDCA hews closely to
the language and spirit of
the 1947 RP-US Military
Bases Agreement.
------------------------------------------
i.
42
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
167. While there is no existing treaty that covers the same range and
scope of what EDCA provides, there is, most tellingly, one that
had lost effect in 1991.
168. The RP-US Military Bases Agreement (MBA), in force between
1947 and 1991, is uncannily similar in language and substance
to the EDCA. Controversial all throughout its time, the MBA
predated the Mutual Defense Treaty; the latter made explicit the
defense relationship as declared in the bases agreement.
169.
Both the MBA and EDCA appeal to US moral compulsion to
assist the Philippine military. Thus premised, the agreements
push for mutual security and defense cooperation, and where
EDCA is framed by “evolving political security developments” 55.
MBA
Preamble
EDCA
Article I, Section I of the EDCA
Whereas, pursuant to this
request the Government of the
United States of America has, in
view of its interest in the welfare
of the Philippines, indicated, its
intention of dispatching a military
mission to the Philippine and of
extending to her appropriate
assistance in the development of
the Philippine defense forces;
(a) ...the Parties’ shared goal of
improving interoperability of the
Parties’ forces, and for the Armed
Forces of the Philippines (“AFP”),
addressing 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;
170. There is no ambiguity at whose instance the agreements were
made.
MBA
Whereas, the Government of the
Republic of the Philippines has
requested
United
States
assistance in providing for the
defense of the Philippines and in
developing for such defense
effective Philippine armed forces;
EDCA
Recognizing 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.
Ambassador Malaya cites this as a compelling reason why the Philippine
government undertook EDCA. TSN, November 25, 2014, p. 124.
55
43
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
ii.
The EDCA, like the MBA,
acknowledges and allows the
entry into the Philippines not
only of US forces and US
personnel but also US civilian
contractors.
---------------------------------------------171.
Article I of EDCA provides that defense cooperation between
the Philippines and the US includes “authorizing access to
Agreed Locations in the territory of the Philippines by United
States forces”.
172.
On the other hand, Article III states that the Philippines
“authorizes and agrees that United States forces, United
States contractors, and vehicles, vessels, and aircraft operated
by or for United States forces” may have access to and conduct
activities in Agreed Locations in the Philippines.
MBA
EDCA
Article XI
Article III
1. It is mutually agreed that the
US shall have the right to
bring into the PH members of
the US military forces and the
US nationals employed by or
under contract with the US
together with their families,
technical personnel of other
nationalities in connection
with
the
construction,
maintenance or operation of
1. the Philippines “authorizes
and agrees that United States
forces, United States contractors,
and vehicles, vessels, and aircraft
operated by or for United States
forces” may have access to and
conduct activities in Agreed
Locations in the Philippines.
44
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
the bases
2.
Such persons other than
members of the US forces
in uniform shall present
their travel documents to
the
appropriate
PH
authorities for visas.
173. The EDCA provides who are considered US forces and United
States contractors. Thus, Article II on the definitions of terms
states, to wit:
“1. ‘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.
2. ‘United States forces’ means the entity comprising United
States personnel and all property, equipment, and material of
the United States Armed Forces present in the territory of the
Philippines.”
3. ‘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 are
contractors are not included as part of the definition of United
States personnel in this Agreement, including within the context
of the VFA.”
174. Currently, only United States personnel with functional military
ties are allowed entry in the Philippines, for activities approved
by the Philippine government, through the VFA.
175.
United States contractors, meanwhile, are not covered by any
existing agreement. EDCA verily has the caveat that they are
not included as part of the definition of United States personnel
in EDCA or VFA56. Therefore, outside of EDCA, there is no
Article I of the VFA: ....“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:
56
45
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
agreement that will justify the entry or presence of US
contractors, under such extraordinary circumstances, in
Philippine territory.
176.
The EDCA in fact echoes the unequivocal acknowledgment
only found in the MBA. Article XI of the MBA provides:
“1. It is mutually agreed that the United States shall have the
right to bring into the Philippines members of the military forces
and United States nationals employed by or under contract with
the United States together with their families, technical
personnel of other nationalities (not being persons excluded by
the laws of the Philippines) in connection with the construction,
maintenance, or operation of the bases...Such persons other
than members of the US forces in uniform shall present their
travel documents to the appropriate Philippine authorities for
visas...x x x”
177.
Under EDCA, United States forces may contract for the delivery
of any materiel, supplies, equipment, and the undertaking of
services including construction in the territory of the Philippines
without restriction as to choice of contractor, supplier, or
person. Such contracts are solicited, awarded, administered in
accordance with the laws and regulations of the United States.
178. These American contractors are given nearly equal status as
US forces in terms of unimpeded access to facilities.
179.
More so, the EDCA allows activities of “contractors and
vehicles, vessels and aircraft operated by or for the US forces”.
Clearly, unidentified third parties not part of the official US
forces – perceivably, contractors – could also operate vessels
and aircraft “for the US.”
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.
46
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
180. Ergo, American contractors under EDCA do not only provide
supplies and the construction of facilities but may also conduct
actual combat-related and security work.
181. The insertion of such class of private individuals and entities, in
a new agreement that has not passed Senate scrutiny, is not
only a sly illegal maneuver. It is ominous.
182.
The US Federal Government annually lists its Top 100
Contractors. The top 10 of the 2013 report 57 is a veritable who’s
who of defense contractors and industrial corporations with
core manufacturing concentrations in weapons and military
electronics:
Number
of
Actions
Global Vendor Name
Lockheed
Martin
Corporation
21,026
The Boeing Company
10,377
Raytheon Company
11,368
General
Dynamics
Corporation
18,400
Northrop
Grumman
Corporation
11,905
SAIC Inc.
Huntington
Ingalls
Industries Inc.
L-3
Communications
Holdings Inc.
United
Technologies
Corporation
30,348
4,168
10,543
11,876
Dollars
Obligated
$44.11
million
$21.17
million
$14.06
million
$13.11
million
$10.00
million
$6.30
million
$6.24
million
$5.78
million
$5.71
million
%Total
Actions
%Total
Dollars
0.1555% 9.6372%
0.0768% 4.6255%
0.0841% 3.0716%
0.1361% 2.8638%
0.0881% 2.1837%
0.2245% 1.3768%
0.0308% 1.3628%
0.0780% 1.2621%
0.0879% 1.2482%
The Federal Government Procurement System has a website. The latest final
report is for fiscal year 2013, though a list is adjusted throughout the year. Last accessed
December
12,
2014.
https://www.fpds.gov/downloads/top_requests/Top_100_Contractors_Report_Fiscal_Ye
ar_2013.xls
57
47
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
183.
The EDCA outright gives preferential treatment to US
contractors who are “under contract or subcontract to or on
behalf of the United States Department of Defense” 58.
184.
Accordingly, the Philippines has no say when it comes to the
entry of notorious armed private contractors like CACI
International Inc.59 and Blackwater, or war profiteers like
Halliburton, or of the hiring of blacklisted firms like Glenn Marine
Defense.
185.
On this point, the EDCA puts the Philippines in a far worse
position than the MBA. Under the EDCA, the US forces are
“without restriction as to the choice of contractor, supplier or
person.”
In the MBA, courtesy was given to Philippine
approval. Thus, Article XIX of the MBA states:
It is mutually agreed that the United States shall have the right,
with the consent of the Philippines, to grant to commercial
concerns owned or controlled by the citizens of the United
States or of the Philippines such rights to the use of any base
or facility retained or acquired by the United States as may be
deemed appropriate by both Governments to insure the
development and maintenance for defense purposes of such
bases and facilities.
186. The US is known to hire contractors to distance themselves
from accountability or liability for illegal acts committed in their
foreign deployments. Judicial notice must be taken of reports
that some contractors, some identified as former Central
Intelligence Agency (CIA) operatives and mercenaries
previously employed in the US Army, while under US employ
do illegal acts such as rendition, torture and other human rights
violations.
187.
One such shady company called DynCorp 60 has remained in
the Philippines since 2004 doing “security work” in Zamboanga.
EDCA, Article II, number 3.
Number 16 on the Top 100 Contractors. CACI was implicated in the Abu Ghraib
prison scandal in 2003 and 2004.
60
Number 82 in the Top 100 Defense Contractors of the US, so far for the period
October 1, 2013 to September 30, 2014. Data compiled by Aeroweb. Last accessed
December 12, 2014. http://www.bga-aeroweb.com/Top-100-Defense-Contractors2014.html
58
59
48
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
DynCorp continues support for U.S. military in Philippines 61
July 12, 2013
FALLS CHURCH, Va., July 12 (UPI) -- DynCorp International
says it will continue supporting U.S. military personnel in the
Philippines through a $44.9 million contract modification.
The modification is the exercise of the first one-year option
under a Naval Facilities Engineering Command-Pacific contract
for operations support services.
Work covered under the contract includes all labor, supervision,
management,
tools,
materials,
equipment,
facilities,
transportation, incidental engineering, and other necessary
support services.
"We have celebrated significant growth in this program and are
honored to be able to continue working with the U.S. military in
the Philippines," said George Krivo, senior vice president of DI's
DynLogistics.
DI said the original contract was awarded last year. Its
cumulative value, if all options are exercised is $223.5 million.
More specific details about the work and the military personnel
for whom it will be performed were not disclosed by the
company.
The United States Navy and Air Force had large bases in the
Philippines, a former U.S. commonwealth, but abandoned them
in 1991 as a result of nationalist sentiment and serious damage
sustained because of a volcanic eruption. In recent years,
however, the Navy has steadily been using the Philippines for
provisioning and supply storage as the U.S. refocuses its forces
on the Asia-Pacific region.
188. DynCorp was implicated in the Iran-Contra scandal and was the
subject of a Permanent Peoples Tribunal complaint for human
rights violations in Colombia, Bosnia, Haiti, Nicaragua and
Afghanistan. Continued US contractual relations with DynCorp
http://www.upi.com/Business_News/Security-Industry/2013/07/12/DynCorpcontinues-support-for-US-military-in-Philippines/77181373656648/.
Last
accessed
December 12, 2014.
61
49
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
is problematic given the company’s terrible track record in the
same exact program areas where they are currently deployed.
189.
The Center for Economic Policy and Research, a UK-based
think tank, runs through the issues with DynCorp in a 2013
report.62
“In Bosnia in the late ‘90s, DynCorp was contracted by the
State Department to provide ‘peacekeepers’ for the U.N. police
there, just as in Haiti now. One employee, Kathryn Bolkovac,
was eventually fired after blowing the whistle to her superiors at
DynCorp on the participation of her colleagues in sex
trafficking, among other abuses. The case was the basis for the
2011 Hollywood movie, The Whistleblower.
“Additionally, DynCorp has a history of waste, fraud and abuse,
including under U.S. government contracts to provide police
training in Afghanistan and Iraq, similar to their program in Haiti.
In 2010, the Special Inspector General for Iraq Reconstruction
issued a report which found that the State Department and
DynCorp could not account for $1 billion dollars spent training
the Iraq police. At the time, Senator Claire McCaskill (D-MO)
said ‘[INL has]been managing this contract in Iraq since 2004
and, according to this report, they have no idea where any of
the money went… What’s even worse is that these are the
same people responsible for police training in Afghanistan, so I
don’t have any confidence that they’re doing a better job there.’
“Sure enough, in 2011 DynCorp was slammed by a joint audit
from the State Department and Department of Defense over
their work training the Afghan police. It wasn’t the first time.
Also In 2011, according to the Project on Government
Oversight’s Contractor Misconduct Database, DynCorp paid
$7.7 million to settle a False Claims Act lawsuit after a
whistleblower alleged that the company had inflated claims
under a “contract with the State Department to provide civilian
police training in Iraq.”
190. Another notorious US contractor is “Blackwater USA” currently
known as “Academi.” According to a CNN and Associated
Press report, they were involved in human rights violations in
Iraq:
http://www.cepr.net/index.php/blogs/relief-and-reconstruction-watch/despitetrack-record-us-hires-contractor-to-provide-troops-to-un-haiti-mission. Also replicated at
blog http://www.jimrigby.org/even-after-years-of-scandal-us-hires-dyncorp-again/ Last
accessed December 12, 2013.
62
50
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Blackwater USA Banned from Iraq
By Matthew Harwood (09/17/2007)
According to CNN.com, Blackwater USA has been thrown out
of Iraq:
Iraq's Interior Ministry has revoked the license of Blackwatwer
USA, an American security firm whose contractors are blamed
for a Sunday gunbattle in Baghdad that left eight civilians dead.
Sunday's firefight took place near Nusoor Square, an area that
straddles the predominantly Sunni Arab neighborhoods of
Mansour and Yarmouk.
In addition to the fatalities, 14 people were wounded, most of
them civilians, the official said. The incident started when a U.S.
State Department convoy Blackwater contractors were
apparently protecting came under attack.
As the Associated Press reports:
Tens of thousands of foreign private security contractors work
in Iraq some with automatic weapons, body armor, helicopters
and bulletproof vehicles to provide protection for Westerners
and dignitaries in Iraq as the country has plummeted toward
anarchy and civil war. These contractors are deeply unpopular
among Iraqi civilians because of their alleged militant posturing
and frenzied driving throughout the cities of Iraq.
Yet even if the Blackwater contractors did indeed commit a
crime, it is questionable they will be held accountable. Due to a
deal secured by the United States with the Iraqi government,
private security contractors cannot be prosecuted for crimes
they commit while in Iraq. And because they are not technically
"soldiers," they do not fall underneath the Uniform Code of
Military Justice.
191. Despite all these, the Philippine government does not seem to
be alarmed nor can give assurance that these types of
contractors will not enter the country. The Solicitor General
during oral arguments at first evaded addressing the
controversy, but eventually ceded the argument.
JUSTICE LEONEN: Article II, Definition, subparagraph (3), means
“Companies and firms and their employees under contract or subcontract
to or on behalf of the United States Department of Defense.” So, does this
exclude the concept of DynCorp or Blackwater?
51
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
xxx
ACTING SOLICITOR GENERAL HILBAY: I don’t know, Your Honor,
whether there are mercenaries but I don’t even know which kinds of
contractors will be allowed there.
xxx
JUSTICE LEONEN: So, is it the position of the Government that the
United States will never contract these security companies here in the
Philippines in any of the Agreed Locations or fo any of the activities
mentioned in EDCA?
ACTING SOLICITOR GENERAL HILBAY: I don’t know, Your Honor, what
is simply, what’s simply says here is that the United States...
JUSTICE LEONEN: So it is possible.
ACTING SOLICITOR GENERAL HILBAY: It is possible that the United
States can hire because there is no limitation in ...
xxx
JUSTICE LEONEN: So the contractors happen to be security personnel
like Blackwater or DynCorp or some other corporations. And they hold
guns and they patrol the Agreed Locations. Is this possible or are you now
telling this Court that these things are entirely not possible?
ACTING SOLICITOR GENERAL HILBAY: Under the EDCA itself, Your
Honor, we have primary responsibility because the location is ours and we
have access to these locations.63
192.
The employment of these types of contractors by the US are
not only based on “popular books” as stated by the Acting
Solicitor General. These are well-documented international
events or incidents that the respondents should have
considered when they entered into the EDCA.
iii. The EDCA, like the MBA,
allows the entry of equipment,
supplies, and materiel for a
wide range of uses.
---------------------------------------------193.
63
64
The US Department of Defense Military Dictionary 64 defines
equipment, supplies and materiel almost interchangeably:
TSN, November 25, 2014, pp. 40-43.
http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf
52
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
EQUIPMENT — In logistics, all nonexpendable items needed to
outfit or equip an individual or organization.
SUPPLIES — In logistics, all materiel and items used in the
equipment, support, and maintenance of military forces.
MATERIEL – All items (including ships, tanks, self-propelled
weapons, aircraft, etc., and related spares, repair parts, and
support equipment, but excluding real property, installations,
and utilities) necessary to equip, operate, maintain, and
support military activities without distinction as to its
application for administrative or combat purposes.
194. With such definitions vague and encompassing, there is no
imaginable limit to what the US can bring into the Philippines
under EDCA. Article IV, paragraph 4 of EDCA allows the entry
of prepositioned materiel:
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 material, at Agreed Locations.
195.
Save for the adjectives “defense” and “war” used loosely, there
are no other descriptive or explanatory word for the equipment,
supplies and material referred to in EDCA. The circumscription
and limitations on what may be brought in are based on the
kinds of activities that may be undertaken.
196. Again, it is the MBA which serves as template. That agreement
refers to no specific equipment or supplies, and only impliedly,
to everything that is necessary to base activities. Article III,
paragraph 2 of the MBA gave the US the rights, powers and
authority:
“1. to construct x x x operate, maintain, utilize, occupy, garrison
and control the bases;
xxx
53
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
“5. to construct, install, maintain, and employ on any bases any
type of facilities, weapons, substance, device, vessel or vehicle
on or under ground, in the air or on or under water that may be
requisite or appropriate, including meteorological systems,
aerial and water navigation lights, radio and radar apparatus
and electronic devices, of any desired power, type of emission
and frequency.”65
iv. No
other
current
agreement allows this broad
license to carry in equipment,
supplies and materiel.
---------------------------------------------197. Being a trooping agreement, the VFA plainly lacks the explicit
stipulations as to equipment, supplies, and materiel. Only
vessels and aircraft are alluded to in the VFA. As admitted by
respondents during oral arguments:
ACTING SOLICITOR GENERAL HILBAY: ...anyway, under the VFA,
Your Honor, it already allows the entry of vessels and aircraft. And so it’s
necessary of course that these vessels and aircraft in cases of
emergency, be able to do and perform everything that is necessary for
them to stay afloat, I suppose. The EDCA, consistent with the VFA simply
creates the details for the arrangment for bunkering, refueling of these
vessels.66
198.
Even the Mutual Support Logistics Agreement, signed
November 8, 2007, is particular as to equipment and supplies
that may be brought into the Philippines. The agreement
enables reciprocal logistics support 67 during combined
exercises and training, operations and other deployments
MBA, Article III, Paragraph 2
TSN, November 25, 2014, p. 126
67
For cash or the same kind in exchange, Philippine and US military may order
from each other logistic supplies, support, and services, defined and subject to terms.
MLSA, Article IV, Paragraph 1 (a) identifies:
(1) Supplies - Food, water, petroleum, oils, lubricants, clothing, ammunition,
spare parts and components, provided during an approved activity.
(2) Support and Services - Billeting, transportation (including airlift),
communication services, medical services, operations support (and construction and use
of temporary structures incident to operations support), training services, repair and
maintenance services, calibration services, storage services, and port services, during
an approved activity. Storage units and ports shall at all times remain under the control
and supervision of the host state.
(3) Logistic supplies, support, and services include the temporary use of general
purpose vehicles and other nonlethal items of military equipment which are not
designated as significant military equipment on the U.S. Munitions List, during an
approved activity.
65
66
54
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
undertaken under the MDT, the VFA or the Military Assistance
Agreement as agreed upon between the Parties, or other
cooperative efforts, such as humanitarian assistance, disaster
relief and rescue operations, and maritime anti-pollution
operations.68
199. MLSA explicitly excludes from its coverage:
a. weapon systems;
b. major end items of equipment (except for the lease or loan of
general purpose vehicles and other nonlethal items of military
equipment which are not designated as significant military
equipment on the U.S. Munitions List); and
c. initial quantities of replacement and spare parts associated
with the initial order quantity of major items of organizational
equipment covered in tables of allowances and distribution,
tables of organization and equipment, and equivalent
documents.
d. items the transfer of which is prohibited by law or
regulations69
200. The following items were specified by the MLSA as excluded
from transfer by United States laws and regulations:
a. guided missiles;
b. naval mines and torpedoes;
c. nuclear ammunition and included items such as warheads,
warhead sections, projectiles, demolition munitions, and
training ammunition;
d. cartridge and air crew escape propulsion system (AEPS)
components;
e. chaff and chaff dispensers;
f. guidance kits for bombs or other ammunition;
g. chemical ammunition (other than riot-control agents); or
h. source, byproduct, or special nuclear materials, or any other
material, article, data, or thing of value the transfer of which is
subject to the Atomic Energy Act of 1954 (Title 42, United
States Code, Section 2011, et. seq.).70
68
69
70
MLSA, Article III, Paragraph 1 (a) and (b)
MLSA, Article III, Paragraph 4
MLSA, Article III, Paragraph 5
55
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
201. EDCA has no similar limitations in terms of what particular
military equipment, hardware, or supplies can be brought into
Philippine territory.
202.
The broad license to carry in prepositioned materiel is
supplemented by mischievous silence. As in the MBA, EDCA
does not give the Philippines actual authority to inspect inbound
items and shipments, and in fact, may be barred by “operational
safety and security requirements”71. This is vis a vis the explicit
powers given to US forces and contractors: unimpeded access,
including delivery, management, inspection, use, maintenance,
and removal.72
203.
The Philippines has no say as to the inspection of the contents
of the prepositioned materiel from the US and thus cannot
object if there are nuclear, biological or chemical weaponry
coming to shore. The obligation of the US forces is simply to
notify the AFP in advance regarding “the quantities and delivery
schedules of the materiel that they intend to preposition, as well
as who shall make the deliveries.” But the US is not obligated to
inform the AFP of the type or kind of materiel, equipment and
supplies that it intends to preposition on the agreed locations.
204. Even if the Philippine and US authorities inserted in Article IV,
Paragraph 2 of the EDCA a seemingly altruistic intention “The Parties share recognition of the benefits that such
prepositioning could have for humanitarian assistance and
disaster relief. The Parties also recognize the value of such
prepositioning to the enhancement of their individual and
collective defense capabilities.”
205.
It cannot hide the fact that the second sentence is the main
purpose of the EDCA—that the US can store weapons,
ammunition and other war materiel and equipment in the
agreed locations on the ground that it is intended to “enhance”
its defense capability.
206.
In 1987, In US lexicon, prepositioned materiel means military
stockpiles. In a US General Accounting Office (GAO) Report,
prepositioned materiel meant,
71
EDCA, Article III, Paragraph 4
EDCA Article IV, Paragraph 4
72
56
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
The U.S. military stores, or prepositions, reserves of military
equipment and supplies near potential conflict areas to ensure
that the material would be quickly available to forces in the
event of a crisis. During a crisis, prepositioning would speed
U.S. response times because only the troops and a relatively
small amount of materiel would need to be brought by air to the
conflict area.
207. The EDCA’s references to Humanitarian Assistance and
Disaster Response (HADR) are mere palliatives and
consolations. The concepts of prepositioned materiel as the
Americans use them do not even contemplate HADR.
208. The Philippines could store and deploy HADR items anyway
even without any military agreement. That is obvious enough in
the experience with other countries like Canada and Belgium,
which provide the Philippines with HADR but do not seek
military agreements.
v.
The EDCA, like the MBA,
provides extensive control and
authority over facilities and
locations.
---------------------------------------------209.
A comparison of the rights that may be exercised within the
base areas under the MBA or agreed locations under the EDCA
shows striking similarities. Thus -
MBA
Article III: Description of Rights
It is mutually agreed that that the
United States shall have the 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
territorial waters and air space
adjacent to, or in the vicinity of, the
bases which are necessary to
provide access to them, or
EDCA
The US has
(i) operational control over Agreed
Locations including its buildings
and facilities;
(ii) access and use of Agreed
Locations;
(iii) the right to exclude Filipinos
without the permission of the US,
(iv) operational control over the
construction, removal, and storage
of anything within the Agreed
Locations; and
(iv) as provided under Article VI,
Paragraph 3, the “US are
57
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
appropriate for their control.
210.
authorized to exercise all rights
and authorities within the Agreed
Locations that are necessary for
operational control or defense.”
Respondents argue that the EDCA fails a “control test”, as yet
ill-defined by the Acting Solicitor General, instituted by the
MBA. Their argument in verbatim:
JUSTICE VELASCO: Can you explain to us the difference between the
Military Bases Agreement and the EDCA which is now being assailed in
this petitions?
ACTING SOLICITOR GENERAL HILBAY: As I mentioned earlier, Your
Honor, we offer several standards for determining whether or not these
are foreign military bases: use, ownership, extraterritoriality and most
importantly, control. Under the Military Bases Agreement of 1947, it’s very
clear...(interrupted)
JUSTICE VELASCO: ...Can you just cite the specific provisions in the
Military Bases Agreement and compare it with the pertinent provisions in
the EDCA so that we can be easily guided?
ACTING SOLICITOR GENERAL HILBAY: Allow me to refer you, Your
Honor, to Article III, Paragraph I of the 1947 Military Bases Agreement.
Article III, Description of Rights, Number 1, it is mutually agreed that the
United States shall have the rights, power, 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 water and airspace adjacent to, or in
the vicinity of, the bases which are necessary to provide access to them or
appropriate for their control. This is plenary power, Your Honor. This is the
general purpose license that we are referring to. What we are saying, Your
Honor, is that if you give this is a foreign military force, it becomes a
foreign military base because they have full control.
JUSTICE VELASCO: What is the parallel provision in the EDCA
pertaining to ... (interrupted)
ACTING SOLICITOR GENERAL HILBAY: Nothing, Your Honor.
JUSTICE VELASCO: The power of the US government ... (interrupted)
ACTING SOLICITOR GENERAL HILBAY: Nothing.
JUSTICE VELASCO: Over the Agreed Locations?
ACTING SOLICITOR GENERAL HILBAY: The power of the US
government in the Agreed Location is the power to request. The power to
request licensed [sic] for specific activities. They want to construct, we
58
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
have to agree. They want to preposition, we have to agree. All the
requests that they will have to go through consent mechanisms.
JUSTICE VELASCO: Okay. Article VI on Security, Paragraph 3 or Item 3
states that US 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 US
forces and United States contractors. The US should coordinate such
measures with appropriate authorities of the Philippines. Does this not
mean that the US forces have absolute control considering they are given
the authority to exercise all the rights and authorities within the Agreed
Locations?
ACTING SOLICITOR GENERAL HILBAY: No, Your Honor.73
211.
The Respondents’ position that “operational control” is limited
only for purposes of construction activities is absurd. Even a
reasonable reading of that specific provision in the EDCA will
yield the conclusion that this effectively translates to control
over the area where those constructions are taking place.
Article III, paragraph 4 states:
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.
212. Respondents cannot overlook Article VI, paragraph 3 on
Security, which greatly broaden the scope of operational
control:
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.
213.
In this provision, the word “their” refers not to US forces and
contractors, but to agreed locations. This categorically
recognizes that US forces have operational control over agreed
locations as a whole, and this is without the qualification found
in Article III, paragraph 4, i.e. that it only relates to construction
activities.
73
TSN, November 25, 2014, p. 96-97
59
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
214. In the same breath, the government’s position that “operational
control” (whether in the context of Article III or Article VI) covers
only US forces and personnel is clearly without merit.
215. First, Article III, paragraph 5 of EDCA would be rendered
superfluous and irrelevant if we were to subscribe to such
argument. It provides:
“The Philippine Designated Authority and its authorized
representative shall have access to the entire area of the
Agreed Locations. Such access shall be provided promptly
consistent with operational safety and security requirements in
accordance with agreed procedures developed by the Parties.”
216.
Were we to follow the Respondents’ position, there would be
absolutely no need for this provision. The entity exercising
possession of and control over a given area need not be
accorded a special provision allowing for its access and entry
into the same area. The only logical conclusion is that the intent
of EDCA is for the US to exercise effective control over the area
of the agreed location itself, and not merely its
forces/personnel.
217. It should also be noted that paragraph 5 does not refer merely
to areas wherein construction activities are taking place, as
opposed to paragraph 4, but pertains to the agreed location as
a whole. Thus, it will be US forces and personnel in possession
and control of the agreed location in its entirety. Philippine
personnel are allowed access to agreed locations only by virtue
of paragraph 5, but even this access is somewhat limited. This
leads to the next point –
218. The second sentence of this paragraph reveals the
agreement’s true intent. Access by the Philippine Designated
Authority (or its representative) is allowed but made subject to
operational safety and security requirements. These
requirements are to be in accordance with procedures agreed
upon by the PH and the US. While the procedures are subject
to an agreement between the parties, the operational safety
and security requirements themselves are left for the US to
formulate. Hence, what would be agreed upon would merely be
60
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
guidelines. The actual security protocols on the ground would
be formulated by US forces.
219.
The EDCA also does not provide any provisional safeguards
that could serve to limit the scope of “construction activities”.
What particular facilities US forces/contractors may construct
on Philippine soil is left to imagination.
220.
Significantly, contrary to the respondents’ claim, there is no
EDCA provision which requires prior consent before
construction on an agreed location may be carried out. Article
III paragraph 4 merely provides for “consultation” on issues
regarding construction, alteration, and improvements.
221.
The provision regarding the activities that the US may conduct
in PH territory (Article I, paragraph 3 – Purpose and Scope), is
much too broad and cannot be considered as a limitation to the
extent of construction activities that may be allowed. The
article provides that the activities allowed thereby are those
related to “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 Parties.” With such wide-ranging activities, the US could
practically construct military facilities that can house any and all
kinds of offensive weapons and armaments short of nuclear
weapons. This, in itself, calls for the application of Article XVIII,
Section 25 of the 1987 Philippine Constitution.
vi. “Operational control” in
the EDCA is fundamentally the
same as “effective command
and control” in the MBA.
---------------------------------------------222.
The original version of the MBA signed in 1947 was blatant in
its lopsidedness towards US interests. The first hint is when
Article I refers to a “grant” of bases – a touchy enough term
because it means “gift” –and to grauitous use. 74 There were
many other issues, compounding the status of Philippine
sovereignty over the bases, that put the matter often and
squarely on the political agenda.
Angangco, Raoul R. and Jose Perpetua M. Lotilla, The 1979 Amendments to the
Military Bases Agreement of 1947: Still a Question of Sovereignty. 53 Philippine Law
Journal 472.
74
61
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
223.
In an exhange of notes between the Philippine foreign minister
and the US ambassador in 1979, the two countries agreed on
amendments to the MBA75. Because of nationalist opposition to
US military bases in the Philippines, the United States gave
nominal “sovereignty” over the bases to the Philippines and put
a Philippine officer in nominal command of each base, while
insisting on US “effective command and control” as well as
“unhampered military operations”.
224. So the crux falls: is the “effective command and control” –
conversely, the right to uinmpeded use and access – found in
the MBA basically the same as the operational control allowed
by the EDCA?
225.
Command and control is “the exercise of authority and direction
by a properly designated commander over assigned and
attached forces in the accomplishment of the mission...” 76 The
official definition provides only one way to assess the quality of
command and control, also called C2, and that is to equate the
quality of C2 to mission accomplishment.
226.
On the other hand, the first definition of operational control was
laid out by the American Joint Chiefs of Staff in 1959 77 as:
“Those functions of command over assigned forces involving
the composititon 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.”
227.
Per se, operational control is not defined. Instead, it is derived
from the authorities of combatant command – a particular form
of C2 – as delineated in military handbooks. Logically,
operational control is inherent to combatant command 78
because it is defined as a subset of its functions or authorities.
The amendments in summary: (1) U.S. to affirm Filipino sovereignty over the
bases; (2) RP to install a Filipino Commander within the base; (3) to reduce the areas
within the base for U.S. use; (4) Filipino troops to assume the base perimeter
responsibility; (5) to review the agreement thoroughly every five years, including its
objectives, duration, and Implementation; and (6) to assure unhampered U.S. military
operations when U.S. forces are involved in the Philippines.
76
Doctrine for the Armed Forces of the United States, Joint Publication 1, published
on March 25, 2013, also called JP-1
77
JCSM-29-59 dated January 26, 1959
75
62
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Thus, operational control provides a much more limited array of
command functions than combatant command.
228.
At present, joint doctrine of the US military states that
operational control79 includes the authority for the following:
(1) Exercise or delegate operational control and tactical control
or other specific elements of authority and establish support
relationships among subordinates, and designate coordinating
authorities.
(2) Give direction to subordinate commands and forces
necessary to carry out missions assigned to the command,
including authoritative direction over all aspects of military
operations and joint training.
(3) Prescribe the chain of command to the commands and
forces within the command.
(4) With due consideration for unique Service organizational
structures and their specific support requirements, organize
subordinate commands and forces within the command as
necessary to carry out missions assigned to the command.
(5) Employ forces within the command, as necessary, to carry
out missions assigned to the command.
(6) Assign command functions to subordinate commanders.
(7) Plan for, deploy, direct, control, and coordinate the actions
of subordinate forces.
(8) Establish plans, policies, priorities, and overall requirements
for the ISR activities of the command.
(9) Conduct joint training exercises required to achieve effective
employment of the forces of the command, in accordance with
joint doctrine established by the CJCS, and establish training
policies for joint operations required to accomplish the mission.
This authority also applies to forces attached for purposes of
joint exercises and training.
(10) Suspend from duty and recommend reassignment of any
officer assigned to the command.
(11) Assign responsibilities to subordinate commanders for
certain routine operational matters that require coordination of
effort of two or more commanders.
(12) Establish an adequate system of control for local defense
and delineate such operational areas for subordinate
commanders as deemed desirable.
Combatant command is the authority vested only in combatant commanders by
Section 164 of U.S. Code Title 10, or as otherwise directed by the US President or
Secretary of Defense.
79
JP 1
78
63
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
(13) Delineate functional responsibilities and geographic
operational areas of subordinate commanders.
229.
Philippine military doctrine meanwhile, is consistent where it
defines:
command and control as “the exercise of authority and
direction by a properly designated commander over assigned
and attached forces to accomplish the mission” and
operational control as, “the transferable command authority
that may be exercised by commanders at any echelon at or
below the level of combatant command.”80
230. Respondents quite simplistically and imprecisely defined
operational control.
ACTING SOLICITOR GENERAL HILBAY: It’s very clear in fact, Your
Honor. And I will explain to you, if I may, the meaning of operational
control, transferrable command authority that may be exercised by
commanders and any echelon or below the level of combatant level.
Operational control, Your Honor, is not with respect to an area.
Operational control is with respect to subordinates. And so, if we say they
have operational control and the right to defend themselves, that makes a
lot of sense because number one, it’s their forces. A superior commander
has the right to command and control all subordinate officers and
members. Do they have the right to defend themselves? Of course. It is
reasonable to give them operational control over their forces? Yes. Is it
reasonable to give them the power to defend themselves in case of an
attack? Well, of course but they are within Philippine military bases and
Philippine military facilities. They don’t have control over the bases. We
have control over our own bases but it makes sense for the military
commanders of the United States to have control over their subordinate
officers and employees.
JUSTICE VELASCO: Okay. Where did you get that kind of meaning of the
phrase operational control? During the negotiations for this EDCA, were
the negotiations placed in black and white or recorded so that the parties
can refer to that in case there is a disagreement as to the meaning of the
phrase operational control or defense?
ACTING SOLICITOR GENERAL HILBAY: Your Honor, this is the 2014
Philippine Air Force Operations Manual, operational control. My
understanding is that ...(interrupted)
JUSTICE VELASCO: Is there a definition, is there a definition...
(interrupted)
80
http://www.paf.mil.ph/archive/MANUALS/body/Chapter%2010.pdf
64
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
ACTING SOLICITOR GENERAL HILBAY: The United State has basically
the same definition. In fact, Your Honor, when we were prepating for the
Oral Arguments, I asked the negotiators, “What does this mean,
Philippines hereby grants the US through bilateral security mechanisms
such as MDB and SEB operational control of Agreed Locations for
construction activities. Can I say during the Oral Arguments, agreed
operational control of Agreed Locations only for construction activities?
Their answer was “Yes”. That is what the agreement says and that is what
they intended.
JUSTICE VELASCO: Okay. But we are talking about Item 3 of Article VI
on Security and you referred to Paragraph 4 of Article III on Construction
but the US forces in the Agreed Locations can undertake any activity
under the pretext of exercising operational control, is it not right?
ACTING SOLICITOR GENERAL HILBAY: No, Your Honor. Their
operational control is the power to control the subordinates.” 81
231. Both C2/combatant command and operational control deal with
the hierarchy of military personnel. The difference lies in the
scope of power over personnel, not in the control over specific
areas, facilities or bases. What is absent of C2 from operational
control is the authority to alter the composition of units,
discipline personnel, confer promotions, redistribute supplies,
separate units, or to change the mission or deploy forces
outside the area of responsibility.
232.
To further elucidate, in the context of multilateral military
activities, the US relies on Presidential Decision Directive No.
25 to differentiate C2 from operational control. The US
concedes that “[i]t [may] sometimes [be] prudent or
advantageous (for reasons such as maximizing military
effectiveness and ensuring unity of command) to place US
forces under the operational control of a foreign commander to
achieve specified military objectives.” 82 It acknowledges that US
military personnel have served under the “operational control”
of foreign commanders during both world wars, Operation
Desert Storm, and under NATO since the establishment of the
alliance, and various U.N. peace operations since 1948. 83
233.
Still, the issuance is centered on the assertion that “[n]o
President has ever relinquished command over U.S. forces.” 84
TSN, November 25, 2014, pp. 98-99.
Synder Jr., J William, "Command" versus "Operational Control": A Critical Review
of
PDD-25.
Published
under
and
copyrighted
on
http://www.ibiblio.org/jwsnyder/wisdom/pdd25.html#ENDNOTE25.
Last
accessed
December 12, 2014.
83
Ibid.
84
Executive order signed by US President William J. Clinton on May 3, 1994.
81
82
65
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
PDD-25 emphatically emphasizes that even when US military
personnel are under the operational control of a foreign
commander, the “fundamental elements" of US command and
control continue to apply. In particular, the US commander of a
unit placed under the operational control of a foreign
commander retains the right to report separately to his
superiors in the US chain of command as well as the superior
foreign commander in charge of the operation.
234.
Moreover, if a US commander receives an order from a U.N.
commander which he feels is illegal under international law or
without the mission mandate, and if he is unable to resolve the
dispute with the immediate U.N. commander, he may refer the
order to “higher US authorities.”85 The directive insists that
“[u]nity of command remains a vital concern, “and that many
issues regarding the legality of orders and the extent of the
mission mandate will be constantly reviewed” ‘on the ground’
before orders are issued.”86
235. Thus, the position of respondents is incorrect, in so far as
precluding the fact the US military commanders may have
control of an Agreed Location.
236. Petitioners assert that operational control of and unimpeded
access of US troops to Agreed Locations, together with the
omnibus exercise of the rights and authorities granted by
EDCA, ensures, establishes, and replicates what MBA had
provided: “right to full use” and the “effective control and
command” of the US military over US military troops,
equipment, supplies, materiel, and Agreed Locations .
237. Juxtaposed, provisions of the EDCA only reaffirm, the rights,
powers and authorities that had been present in the MBA, albeit
couched in a different language.
As to
ownership of
the bases
/location
85
86
PDD-25
Ibid.
MBA
EDCA
1979 Amendment (RomuloMurphy exchange of notes)
“The bases subject of the
Agreement
are Philippine
military bases over which
Article V, Paragraph 1
“The Philippines shall
retain ownership of and
title
to
Agreed
Locations”
66
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Philippine
sovereignty
extends, and that only the
Philippine flag shall be flown
singly at the bases.”
As to use and Article I: Grant of Bases
US forces, contractors,
access
and others as mutually
1. The Government of the agreed
Republic of the Philippines (i) shall have the right to
(hereinafter referred to as the access and use to
Philippines) grants to the Agreed
Locations
Government
of
America provided
by
the
(hereinafter referred to as the Philippines through the
United States) the right to AFP
retain the use of the bases in (ii) unimpeded access to
the Philippines listed in Annex Agreed Locations for all
A attached hereto.
matters relating to the
prepositioning
and
2. The Philippines agrees to storage
of
defense
permit the United States, upon equipment,
supplies,
notice to the Philippines, to and material, including
use such of those bases listed delivery, management,
in Annex B.
inspection,
use,
maintenance,
and
removal
of
such
Article VII: Ownership and equipment, supplies and
Disposition
of
Buildings, material.
Structures
and
Other
Properties
(based
on
Manglapus-Schultz
amendments)
2...The US shall, however,
have the right of full use, in
accordance
with
this
Agreement, of such nonremovable
buildings
and
structures within the US
facilities at the bases...
238.
The EDCA, fraught with doublespeak and empty words,
features stipulations that are worse than that of previous
agreement brokered with the US.
vii. The EDCA does not
distinguish between peacetime
and wartime use of Agreed
Locations by the US, thus,
violating public policy.
67
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
---------------------------------------------239. Philippine policy strongly stands against war, as embodied in
Article II of our Constitution:
Section 2. The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations.
240. Thus, the Philippine cannot initiate or engage in offensive war.
The framers of the Constitution make sense of the issues as to
use of force in international law:
MR. GASCON:
...Section 2, line 12, speaks of the provision which
says: "They renounce war as an instrument of national policy. . . " I would
like to know why it is important to emphasize this provision. Does this
mean that the Philippines shall not take a militaristic, imperialistic and
colonialistic attitude as far as relating to other countries?
My second question is: Does this imply a pacifist attitude as far as foreign
policy is concerned?
MR. NOLLEDO:
Yes, it implies a pacifist attitude because what we
renounce is only aggressive war; we do not renounce defensive war.
MR. AZCUNA:
Mr. Presiding Officer, is the Commissioner telling us
that if we are attacked we will not defend ourselves?
MR. GASCON:
Mr. Presiding Officer, that is my point. Pacifism as a
movement in the world today even renounces aggression in itself.
MR. NOLLEDO:
Even in self-defense.
MR. GASCON:
Officer.
Yes. So, I would like to clarify that, Mr. Presiding
MR. NOLLEDO:
A concept of pacifism is that when one is attacked, he
just allows the attacker to kill him. Self-defense is an instinctive right that is
inherent in human nature. I do not believe that even a pacifist will not
defend himself.
68
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
MR. AZCUNA:
This is best stated in the John Wayne philosophy, Mr.
Presiding Officer, when he said: "We ain't looking for trouble, Mister, but if
trouble comes galloping around looking for me, I ain't hard to find."
MR. NOLLEDO:
One's instinct will urge one to defend himself.
MR. AZCUNA:
We can defend ourselves. We renounce war only
when it is an aggressive war.
MR. GASCON:
241.
As an aggressive policy of the State.87
The EDCA conveniently fails to make an authoritative
statement in support of this policy.
242. What is clear is that Agreed Locations will be used, in
particular, for prepositioning of equipment, supplies, and
materiel, and for deployment of forces and materiel. This is
without qualification as to purpose.
243.
Such blanket permission would allow the US to exploit
Philippine locations to support wars and conflicts it is currently
involved in. As of 2014, not counting areas where it has furtive
operations, the US is openly involved in conflicts in
Afghanistan, Yemen, Iraq, Colombia and Syria.
244. This is a throwback both to the MBA and the rejected 1991
Treaty of Friendship, Cooperation and Security between the
Philippines and the US.
245.
US military benefits from the Philippine military bases 88
summarized at the tailend of the Cold War were identified:
Areas
Supported
Southeast
Asia
Operation Supported
1. Offset Soviet (or its successor regime) military
presence
2. Threaten Soviet lines of communication to
Southeast Asia from Soviet Far East
3. Support ground warfare in defense of allies
4. Defend Southeast Asian sea and air routes
Record of the Constitutional Commission No. 85, September 17, 1986.
Alva M. Bowen, Jr., “The Philippine-American Defense Partnership” in Rebuilding
a Nation: Philippine Challenges and American Foreign Policy, ed. Carl H. Lande,
Washington DC: The Washington Institute Press, 1987.
87
88
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Northeast
Asia
Persian Gulf
246.
1. Defend Northeast Asian sea and air routes
2. Defend trans-Pacific sea and air routes
3. Threaten sea routes from Europe to the Soviet Far
East
4. Rear base support of ground warfare in defense of
US allies
1. Defend Southeast Asian sea and air routes
2. Way stations on the air route from the US to Diego
Garcia
3. Rear base support of combat operations in defense
of Persian Gulf oil fields
The Philippine bases were used for active, aggressive military
use. Between 1950 and 1953, US military bases Clark and
Subic played key logistical roles in support of US forces in the
Korean War. Later, they were used as supply drops and
staging areas for US interventions in Vietnam, Laos, Cambodia,
Kampuchea, China, Indonesia, and Pakistan. 89
247. The US tried to extend its stay in the Philippine bases by ten
(10) more years through the Treaty of Friendship. Citing the
eruption of Mt. Pinatubo and dangling various economic
enticements, then-US President George Bush pushed for the
ratification of the treaty as integral to continuing defense
cooperation.
248. However, in 1991, the Philippine Senate rejected the treaty,
noting as one of the factors, the multi-purpose entry of US
troops.
249. Senate Resolution No. 415 of the Eighth Congress of the
Philippines, states:
“Taking into account that the Treaty and Supplementary
Agreement Number Two allows the use by the United States of
installations in Subic Naval Base for a period of ten (10) years
after the expiration of the Military Bases Agreement on 16
September 1991 for the purpose, inter alia, of “projecting or
operating United States forces from the installations under
conditions of peace and war;”
The Philippines Reader, ed. Daniel B. Schirmer, Stephen Rosskamm Shalom,
South End Press, January 1, 1987.
89
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
250. Interestingly, the activities allowed in EDCA almost perfectly
correspond with the purposes of US military presence set down
in that rejected treaty. A comparison of the provisions is
remarkable:
Activities allowed under the
EDCA
Article III, paragraph 1
a) training;
b) transit;
c) support and related activities
d) refueling of aircraft;
e) bunkering of vessels;
f) temporary maintenance of
vehicles, vessels and aircraft;
g) temporary accommodation of
personnel;
h) communications;
i) prepositioning of equipment,
supplies, and material;
j) deploying forces and material;
and
k) such other activities as the
Parties may agree.
Activities proposed under the
Treaty of Friendship
Supplementary Agreement
Number Two
Article I
a. training of US forces and joint
training of US forces with
Philippine forces;
b.
servicing,
provisioning,
maintenance,
support
and
accommodation of US forces;
c.
logistics
supply
and
maintenance points for support of
US forces;
d. transit point for US forces and
US military personnel;
e. projecting or operating US
forces from the installations in
under conditions of peace or war,
provided that military combat
operations of the US forces
directly
launched
from
installations
on
the
base
authorized for US use shall be
subject to the prior approval of
the
Government
of
the
Philippines;
f. such other purposes, consistent
with this Agreement, as may be
mutually agreed.
viii. Return of the Agreed
Locations unilaterally depends
on the US.
---------------------------------------------251. The return of the Agreed Locations depends on the whims and
caprices of the US.
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
252. EDCA states that the US have the right to posses and use the
land, buildings and other non-relocatable structures in the
Agreed Locations “until no longer required by [its] forces.”
253. This certainly is a worse deal than the MBA. The right of use to
the bases automatically “revert to the Philippines upon the
termination of [the MBA] or the earlier relinquishment by the
US”.
254. EDCA’s seemingly innocuous phraseology makes return of the
facilities or locations a potestative conditional obligation, rather
than subject to a suspensive term. Rhetorially put, if the US
does not deem that it no longer requires the Agreed Locations,
can the Philippines demand their return? Under our Civil Law,
when the fulfillment of the condition depends upon the sole will
of the obligor, no juridical tie is created and the conditional
obligation shall be void.
255. Further, there is no stipulation in EDCA regarding the condition
of the facilities or locations upon turn-over. Thus unspoken, it
avoids any off-putting statement such as in the MBA:
“There is no obligation on the part of the United States or of the
Philippines to rebuild or repair any destruction or damage
inflicted from any cause whatsoever on any of the nonremovable buildings or structures used by the United States in
the bases. The United States is not obligated to turn over the
bases to the Philippines at the expiration of this Agreement or
the earlier relinquishment of any bases in the condition in which
they were at the time of their occupation, nor is the Philippines
obliged to make any compensation to the United States for the
improvements made in the bases or for the non-removable
buildings or structures left thereon....”90
256.
The EDCA did not follow the lead of the Treaty of Friendship,
where it was directly proposed that the US “shall make every
effort to turn [all immovables] over in serviceable condition.” 91
THE AGREED LOCATIONS UNDER THE EDCA
ARE SIMILAR TO FOREIGN MILITARY BASES OR
FACILITIES.
D.
90
91
EDCA, Article VII, paragraph 2.
Treaty of Friendship, Article IV, paragraph 5.
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
i.
The infrastructures and facilities to be
constructed and the equipment and
materiel to be stored in the Agreed
Locations under the EDCA are
consistent with the features of a foreign
military base.
---------------------------------------------------------
257.
The term “military base” seems to have no rigidly technical or
finite definition.
The US Department of Defense in its
Dictionary of Military and Associated Terms loosely defines a
base as:
“1. A locality from which operations are projected or supported.
2. An area or locality containing installations which provide
logistics or other support. 3. Home airfield or home carrier.”92
258. Related terms are defined in the US DOD Joint Publication 01
as follows:
base operating support.
Directly assisting, maintaining,
supplying, and distributing support of forces at the operating
location. (Also called BOS.)
facility — A real property entity consisting of one or more of the
following: a building, a structure, a utility system, pavement,
and underlying land. (JP 3-34)
259.
In its colloquial meaning, a military base is defined as, 93
a facility directly owned and operated by or for the military or
one of its branches that shelters military equipment and
personnel, and facilitates training and operations. In general, a
military base provides accommodations for one or more units,
but it may also be used as a command center, a training
ground, or a proving ground. In most cases, a military base
relies on some outside help in order to operate. However,
certain complex bases are able to endure by themselves for
long periods because they are able to provide food, water and
other life support necessities for their inhabitants while under
siege.
92
93
Joint Publication 1-02, published 8 November 2010
http://en.wikipedia.org/wiki/Military_base
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
260. The EDCA brings back the US bases under a different name,
under a more flexible arrangement, but with the same functions
and purpose.
261.
Under the EDCA, US forces and US contractors are granted
the right to access and use the so-called “agreed locations”.
262.
“Agreed Locations” means facilities and areas that are provided
by the Government of the Philippines through the AFP and that
US forces, US contractors, and others as mutually agreed,
shall have the right to access and use pursuant to this
Agreement. 94
263. The Agreed Locations as defined under the EDCA, are
essentially the areas within the territory of the Philippines where
the US forces and troops shall be stationed.
264.
The Agreed locations also serve as the base of operations of
the US forces and US contractors. These are the geographical
areas within the territory of the Philippines where US forces, US
contractors, as well as the vehicles, vessels, and aircraft
operated by or for US forces are authorized to conduct the
following activities with respect to Agreed Locations:
a.
b.
c.
training;
transit;
support and related activities;
support — 1. The action of a force that aids, protects,
complements, or sustains another force in accordance
with a directive requiring such action. 2. A unit that helps
another unit in battle. 3. An element of a command that
assists, protects, or supplies other forces in combat. See
also close support; direct support; general support;
inter Service support; mutual support. (JP 1)
d.
refueling of aircraft; bunkering of vessels;
The situations that would necessitate the refueling of
aircraft and vessels are not provided under the EDCA.
Hence, the enemies of the US can also consider as an
94
Article II, paragraph 4 of the EDCA.
74
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
act of war on the part of the Philippines, even the mere
refueling of US planes here before they attack their
targets abroad. This not only drags the Filipino People
into wars or conflicts which they have no reason for
involvement, but it also makes the Philippines a legitimate
target for attack of the many enemies of the United
States. The Philippine government, by allowing the
insertion of these activities, has practically placed the
country and the Filipino People in danger.
e.
f.
g.
h.
temporary maintenance of vehicles, vessels and aircraft;
temporary accommodation of personnel;
communications;
prepositioning of equipment, supplies, and material;
pre-position — To place military units, equipment, or
supplies at or near the point of planned use or at a
designated location to reduce reaction time, and to
ensure timely support of a specific force during initial
phases of an operation. (JP 4-0)
equipment — In logistics, all nonexpendable items
needed to outfit or equip an individual or organization. (JP
4-0)
supplies — In logistics, all materiel and items used in the
equipment, support, and maintenance of military forces.
(JP 4-0)
materiel — All items necessary to equip, operate,
maintain, and support military activities without distinction
as to its application for administrative or combat
purposes. (JP 4-0)
The “prepositioning of equipment, supplies and
materiel” means that the US will stockpile weapons,
ammunition, supplies and other materiel that its ships,
planes and troops will use abroad when needed or in
case of war.
i.
deploying forces and material;
deployment — The rotation of forces into and out of an
operational area. See also deployment order; deployment planning; prepare to deploy order. (JP 3-35);
75
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
force — 1. An aggregation of military personnel, weapon
systems, equipment, and necessary support, or
combination thereof. 2. A major subdivision of a fleet. (JP
1)
The activity “deploying forces and materiel”
includes the launching of military drones which have
become not just surveillance planes, but deadly offensive
weapons. This means that the Philippines can become a
launching pad for covert or overt military operations
abroad such as those undertaken in many other wars that
the US is involved in.
j.
And such other activities as the Parties may agree.
Additional activities may be included by the parties which
will not be subject to the knowledge and scrutiny of the
Senate or the public. The inclusion of additional activities
can be done in secrecy between the designated
authorities of both parties.
265.
To illustrate, based on the activities that the US forces and
contractors are authorized to undertake, the Agreed Locations
can –
o
contain houses or barracks to accommodate thousands
or unlimited number of US troops to be stationed in the
agreed locations.
o
they contain weapon armories, arsenals or silos;
o
they have secure storage buildings for prepositioned
supplies and war materiel;
o
they have their own facilities for refueling, bunkering, and
repairing warships or aircrafts;
o
they have their own perimeter wall which will prohibit
unauthorized entry;
o
they operate their own telecommunication systems and
with separate facilities for water, electricity and other
utilities;
76
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RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
o
266.
they can be used as launching pads or sites for the
deployment of troops and war materiel to other countries.
Unlike in the VFA, the above-mentioned activities are to be
undertaken by the US forces and US contractors independently
and NOT jointly with the Philippine armed forces. Certainly, the
US forces cannot undertake the aforesaid large-scale activities
secured from threats without a base.
ii.
The respondents yielded to
the US forces the operational
control of Agreed Locations.
----------------------------------------------267.
Under the EDCA, the Philippines grants to the United States,
operational control of Agreed Locations for construction
activities and authority to undertake such activities on, and
make alterations and improvements to, Agreed Locations.
268.
The US forces are also authorized to exercise all rights and
authorities within the Agreed Locations that are necessary for
their operational control or defense, including taking
appropriate measures to protect US forces and US contractors.
The United States should only coordinate such measures with
appropriate authorities of the Philippines.
269. The US Joint Publication 01 defines operational control and
related terms as 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. Also called OPCON. See also combatant command;
combatant command (command authority); tactical control.
(JP 1)
operational control authority — The naval commander
responsible within a specified geographical area for the naval
control of all merchant shipping under Allied naval control. Also
called OCA. (JP 3-15)
77
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
combatant
command
(command
authority)
—
Nontransferable command authority, which cannot be
delegated, of a combatant commander to perform those
functions of command over assigned forces involving
organizing and employing commands and forces; assigning
tasks; designating objectives; and giving authoritative direction
over all aspects of military operations, joint training, and
logistics necessary to accomplish the missions assigned to the
command.
Also called COCOM. See also combatant
command; combatant commander; operational control;
tactical control. (JP 1)
270.
The US retains operational control of the Agreed Locations.
The EDCA, however, did not specify what US institution, entity
or organization is principally tasked with the operational control
of the Agreed Locations.
271.
While US civilian contractors are granted unimpeded access to
agreed locations, Philippine authorities’ access to the Agreed
Locations will have to comply with the “operational safety and
security requirements” and procedures that the US forces will
impose.
272.
The Filipinos, including commanding officers of the AFP are not
allowed access without the permission of the US forces as
provided under Article III, Paragraph 5 of the EDCA. The US
does not allow the Filipinos ready access to their armories,
communication centers, intelligence hubs and war materiel.
273. What is being practiced and implemented in US-controlled
areas in Camp Navarro gives us an idea of how the Agreed
Locations will be managed under the “operational control” of the
US.
274.
In granting “operational control” and authority to exercise “all
rights and authorities” within the Agreed Locations, the
respondents allowed the Philippine forces to be subordinate to
the US forces.
275. Undisputedly, the types of activities and the operational control
over the agreed locations that US forces are authorized to
undertake and exercise show that the agreed locations are
essentially foreign military bases or facilities.
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
276. The respondents’ failure to comply with Article XVIII, Section 25
of the Constitution concerning the entry or reestablishment of
US bases, troops or facilities in the Philippines, clearly makes
the EDCA unconstitutional.
The MDB and the SEB do not provide
the alleged consent mechanisms with
respect to the activities under the
EDCA.
-----------------------------------------------------277.
The respondents claim that the main difference between the
EDCA and the bases agreement is the alleged consent
mechanism provided in the processes of the Mutual Defense
Board (MDB) and the Security Engagement Board (SEB).
Acting Solicitor General even claimed that like in the VFA,
every activity has to be approved by the Philippines, under
EDCA. Allegedly, the consent of the Philippines must first be
secured before the activities could be undertaken by the US.
Such claim has no basis in fact and law.
278.
It should be stressed at the outset that there is NO provision
under EDCA that explicitly requires the consent of the
Philippines before any activity could be undertaken pursuant to
the Agreement. What the provisions of EDCA provide are mere
“consultations.” Thus –
Article III, paragraph 4, provides:
4. 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 the United States forces should be consistent with
the requirements and standards of both Parties.
Article V, paragraphs 2 and 5, states:
79
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
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 of
the Designated Authorities shall consult regarding the terms
of return of any Agreed Locations, including possible compensation for improvements or construction.
2.
The Parties may consult regarding the possible transfer or purchase of equipment determined to be excess, as may
be allowed by United States laws and regulations.
5.
Xxx
Article IX, paragraph 2, states:
x x x The environmental
compliance standards applied by United States, Philippine, or
applicable international agreement standards. To that end,
during the development and periodic review of such
environmental practices, the Parties shall cooperate and
consult to ensure that Philippine standards are accurately
reflected.
Xxx
Article X, paragraph 4;
The Parties of their Designated Authorities intend to consult
regularly concerning the implementation of this Agreement.
Xxx
Article XI
Article XI
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.
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
279.
The only provision that require explicitly the consent of a party
is Article VI, paragraph 4, which states:
4.The Parties shall take all reasonable measures to ensure the
protection safety, and security of United States property from
seizure by or conversion to the use of any party other than the
United States, without prior written consent of the United
States.
280.
Consultation is different from the requirement of prior consent.
Clearly, there is no basis for the respondents’ claim of consent
mechanism.
281.
The Mutual Defense Board (MDB) was created through the
1958 Bohlen-Serrano Exchange of Notes 95 to provide the intergovernmental machinery for direct liaison and consultation
between the appropriate Philippine and United States
authorities on military matters of mutual concern supposedly for
the common defense of the two countries. 96 The Mutual
Defense Treaty between the Philippines and the United States
provided for the creation of the MDB. The AFP Chief of Staff
and the US Pacific Command Commander co-chair the MDB.
282.
The Security Engagement Board (SEB) was created through
the 2006 Romulo-Kenney Exchange of Notes 97 to provide a
framework and mechanism for direct and continuing liaison and
consultation on non-traditional security concerns such as, but
not limited to: terrorism, transnational crimes, maritime security
and safety between the appropriate Philippine and United
States authorities; develop measures and arrangements for
enhanced cooperation in connection therewith and for the
Please refer to the attached Annex “C” 15 May 1958 Exchange of Notes
containing the Annex creating the Mutual Defense Board.
96
1. Establishment of the Board In consonance with the mutual desire of the
Government of the Republic of the Philippines and the Government of the United States
to implement more effectively certain provisions of existing defense agreements
between the two countries there is hereby established under the Philippine-United
States Council of Foreign Ministers a permanent Philippine-United States Mutual
Defense Board with headquarters at Manila. The Board shall report to the Council
through the latter’s military representatives.
2. Purpose The purpose of this Board is to provide continuing intergovernmental
machinery for direct liaison and consultation between appropriate Philippine and United
States authorities on military matters of mutual concern so as to develop and improve,
through continuing military cooperation, the common defense of the two sovereign
countries.
97
Please refer to the attached Annex “D” 11 April 2006 and 12 April 2006
Exchange of Notes containing the document creating the Security Engagement Board.
95
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
common security interests of the two countries. 98 The SEB was
designed to complement the MDB.
283. There is also the so-called Council of Foreign Ministers
consisting of the concerned Secretary of Foreign Affairs and
the Ambassador of the United States to the Philippines.
284. The Chairmen of the MDB and SEB annually submit a list of
exercises and activities to undertake the following year through
the Secretary of National Defense to the Council of Foreign
Ministers for approval.
285. Taking the mandates of the two Boards altogether, their
express tasks include:
MDB
a.) implement more effectively certain provisions of existing
defense agreements between the two countries,
b.) provide continuing intergovernmental machinery for direct
liaison and consultation between appropriate Philippine and
United States authorities on military matters of mutual concern,
c.) to develop and improve, through continuing military
cooperation, the common defense of the two XXXXX
countries,
98
II. Purpose The Board shall provide a framework and mechanism for direct and
continuing liaison and consultation on non-traditional security concerns such as, but not
limited to, terrorism, transnational crimes, maritime security and safety, natural and manmade disasters, between the appropriate Philippine and United States authorities;
develop measures and arrangements for enhanced cooperation in connection therewith;
and promote the common security interests of the two sovereign countries. The Board
shall co-exist with and complement the Mutual Defense Board (MDB) created under the
Mutual Defense Treaty between the Republic of the Philippines and the United States of
America signed on the 30th of August 1951 and entered into force on the 27th of August
1952. XXXXX
IV. Terms of Reference Pursuant to the RP-US Visiting Forces Agreement, the Board
shall consider and develop measures and arrangements for enhanced RP-US
cooperation on non-traditional security concerns and by agreement between the CoChairmen, decide on matters within their competence, as may be established by their
respective policies and procedures, or recommend matters for approval by the Council
of Foreign Ministers through their respective Departments of Defense.
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G.R. NO. 212444
d.) to consider, and by agreement between the Co-chairmen,
to decide on matters within its competence as may be
established by agreed policies and procedures,
e.) when necessary, to recommend to their respective
Governments how best to resolve in the mutual interest of the
two XXXXX countries,
f.)
the correlation, in accordance with existing laws and
policies of the respective Governments, of military matters of
mutual concern which arise from the operation of the PhilippineUnited States Mutual Defense Treaty XXXXX,
SEB
g.) provide a framework and mechanism for direct and
continuing liaison and consultation on non-traditional
security concerns such as, but not limited to, terrorism,
transnational crimes, maritime security and safety, natural and
man-made disasters,
h.) develop measures and arrangements for enhanced
cooperation in connection therewith,
i.)
promote the common security interests of the two
XXXXX countries, and
j.)
consider and develop measures and arrangements
for enhanced RP-US cooperation on non-traditional security
concerns and by agreement between the Co-Chairmen, decide
on matters within their competence, as may be established
by their respective policies and procedures, or recommend
matters for approval by the Council of Foreign Ministers
through their respective Departments of Defense.
286. In comparison, the EDCA has the following references to the
Mutual Defense Treaty (MDT), MDB and SEB as well as
matters of consent on activities within the so-called Agreed
Locations,
PREAMBLE
Recalling further Article I of the MDT, which states, “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
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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,”;
XXXXX
Recalling the Agreement for the Establishment of Mutual
Defense Board (“MDB”), concluded by exchange of notes at
Manila on May 15, 1958, and the Agreement to Establish a
Security Engagement Board (“SEB”), concluded by exchange
of notes at Manila on April 11 and 12, 2006;
Article 1
PURPOSE AND SCOPE
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. XXXXX
2.
In furtherance of the MDT, the Parties mutually agree that
this Agreement provides the principal provisions and necessary
authorizations with respect to Agreed Locations.
3.
The Parties agree that the United States may undertake
the following types of activities in the territory of the Philippines
in relation to its access to and use of Agreed Locations: 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 Parties.
Article II
DEFINITIONS
5.
“Designated Authorities” means, respectively, the
Philippine Department of National Defense, unless the
Philippines otherwise provides written notice to the United
States, and the United States Department of Defense, unless
the United States otherwise provides written notice to the
Philippines.
Article III
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AGREED LOCATIONS
1.
With consideration of the views of the Parties, the
Philippines hereby authorizes and agrees that United States
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 refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles,
vessels and aircraft; temporary accommodation of personnel;
communications; prepositioning of equipment, supplies, and
material; deploying forces and material; and such other
activities as the Parties may agree.
XXXXX
4.
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 the United States forces should be consistent with
the requirements and standards of both Parties.
5.
The Philippine Designated Authority and its authorized
representative shall have access to the entire area of the
Agreed Locations. Such access shall be provided promptly
consistent with operational safety and security requirements in
accordance with agreed procedures developed by the Parties.
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
material (“prepositioned material”), including, but not limited to,
humanitarian assistance and disaster relief equipment,
supplies, and material, at Agreed Locations. United States
forces shall notify the AFP in advance regarding the quantities
and delivery schedules of defense equipment, supplies, and
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G.R. NO. 212444
material that United States forces intend to preposition in
Agreed Locations, as well as who will make such deliveries
2.
The Parties share recognition of the benefits that such
prepositioning could have for humanitarian assistance and
disaster relief. The Parties also recognize the value of such
prepositioning to the enhancement of their individual and
collective defense capabilities.
Article V
OWNERSHIP
2.
The United States shall return to the Philippines any
Agreed Locations, or any portion thereof, including nonrelocatable 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 of the Designated Authorities shall consult regarding the
terms of return of any Agreed Locations, including possible
compensation for improvements or construction.
XXXXX
5.
The Parties may consult regarding the possible transfer or
purchase of equipment determined to be excess, as may be
allowed by United States laws and regulations.
Article VI
SECURITY
1.
The Parties shall cooperate to take such measures as
may be necessary to ensure the protection, safety, security of
United States forces and United States contractors, and the
protection and security of official United States information in
the territory of the Philippines.
XXXXX
3.
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.
Article IX
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G.R. NO. 212444
ENVIRONMENT, HUMAN HEALTH, AND SAFETY
2.
The United States confirms its intent to respect relevant
Philippine environmental, health, and safety laws, regulations,
and standards in the execution of its policies. The Philippines
confirms its policy to implement environmental, health, and
safety laws, regulations, and standards with due regard for the
health and safety of United States forces and United States
contractors. The Parties shall fully cooperate in the timely
exchange between the competent representatives of the
Parties of all relevant existing information concerning
environmental and health protection at Agreed Locations. The
environmental compliance standards applied by United States,
Philippine, or applicable international agreement standards. To
that end, during the development and periodic review of such
environmental practices, the Parties shall cooperate and
consult to ensure that Philippine standards are accurately
reflected.
Article XII
ENTRY INTO FORCE, AMENDMENT, DURATION, AND
TERMINATION
1.
This Agreement shall enter into force on the date of the
last note exchanged between the Parties, through diplomatic
channels, confirming the completion of all necessary internal
procedures required for the entry into force thereof.
287.
It is quite clear that the respective competencies of both the
MDB and SEB are purely recommendatory in nature to the
Council of Foreign Ministers and limited to matters of
military concerns and defense.
288. The Agreed Locations and the activities that the US Forces
may propose to do thereon do not become purely matters of
military concern simply because the MDB and SEB see them fit
to make them as such.
289. The Agreed Locations are part of Philippine Territory and the
discretion to dispose of the same cannot rest solely on the
whims and caprices of persons comprising the military
establishment.
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290. The Agreed Locations are manifestly and unqualifiedly foreign
military bases and their presence here must pass through the
stringent requirements set forth under Article XVII, Section 25
of the 1987 Philippine Constitution.
291. There is nothing in the Exchanges of Notes creating both the
MDB and SEB that grant unto them the plenary power to
unilaterally allow foreign troops and bases into the country and
to permit or oversee their conduct of activities and operations
herein.
292. It is certainly beyond the scope, power and authority of these
two Exchanges of Notes to supersede what comprise Philippine
Sovereignty as embodied under the 1987 Constitution or to
enable its creatures, the MDB and SEB, to do the same.
293. Moreover, the agreements that the MDB and SEB oversee do
not even pertain to the current milieu of Philippine Society.
MDB supposedly monitors the implementation of the 1951 MDT
and the SEB on the Visiting Forces Agreement (VFA) of 1998.
294. There is therefore no basis for the claim of the Office of the
Solicitor General that the MDB and SEB have conveniently
become the means for the consent mechanism under the
EDCA.
295.
Any actions of the MDB and SEB in this regard are clearly ultra
vires, void and of no legal force and effect.
THE PRESIDENT’S POWER AND DISCRETION OVER
FOREIGN RELATION MATTERS IS LIMITED BY THE
CONSTITUTION ITSELF
II.
296.
The Philippine foreign policy is anchored on the Constitution
which the President has sworn to uphold.
Article II, Sections 2 and 7 state:
Section 2. The Philippines renounces war as an
instrument of national policy, adopts the generally
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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.
Section 7. The State shall pursue an independent
foreign policy. In its relations with other states, the
paramount consideration shall be national
sovereignty, territorial integrity, national interest,
and the right to self-determination. 99
297.
As head of state, the President is vested with the authority to
deal with foreign states. His foreign relations powers are limited
by the Constitution itself and other Philippine laws. Being the
chief executive, he has the duty to enforce laws and ensure that
these are faithfully executed. Thus, in entering any international
agreement and in dealing with foreign relations matters, the
President must not act in contravention of any existing law.
298.
When it comes to international agreements involving foreign
military bases, troops or facilities, the President's power to enter
into such agreement is limited by Article XVIII Section 25 and
Article VII Section 21of the Constitution.
Article VII. Section 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.
Article XVIII. 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.
299.
99
The actions of the President in relation to his foreign relations
powers may be the subject of judicial inquiry if the same were
1987 Constitution
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entered into beyond the constitutional limits of his powers and
authority. The EDCA is one such example.
300.
The President's act of entering into EDCA is in derogation of the
constitutional principles of Philippine sovereignty and territorial
integrity. The agreement tramples upon provisions of the Constitution and Philippine Laws.
301.
In their consolidated comment as well as in their statements before the Supreme Court on the occasion of the Oral Arguments,
Respondents, through the Office of the Solicitor General, argues that the EDCA was validly entered into by the President in
the exercise of his constitutionally assigned powers as chief executive.
302.
Article VII Section 1 of the 1987 Constitution states that “executive power shall be vested in the President of the Philippines”.100
303.
Executive poweris generally defined as the power to enforce
and administer laws.101It is the power of carrying the laws into
practical operation and enforcing their due observance. 102It is
often used to encompass a bundle of powers typically enjoyed
by the executive branch, such as foreign relations, control, and
the power to appoint.
304.
The specific powers vested upon the president are enumerated
in Article VII of the 1987 Constitution:
ARTICLE VII
EXECUTIVE DEPARTMENT
Section 1. The executive power shall be vested in
the President of the Philippines.
xxx
Article VII Section 1, 1987 Constitution; See also Chapter 3, Section 11
Executive Order 292 (The Administrative Code of 1987)
101
Isagani Cruz, Philippine Political Law, p. 173 [1996], cited in Blas Oplevs. Ruben
Torres, G.R. No. 127685, July 23, 1998
102
Tañada and Carreon, Political Law of the Philippines, vol. 1, p. 275 [1961], cited
in Blas Oplevs. Ruben Torres, G.R. No. 127685, July 23, 1998
100
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Section 16. The President shall nominate and, with
the consent of the Commission on Appointments,
appointthe heads of the executive departments,
ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel
or naval captain, and other officers whose
appointments are vested in him in this Constitution.
He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the
heads of departments, agencies, commissions, or
boards.
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until
disapproved by the Commission on Appointments
or until the next adjournment of the Congress.
Section 17. The President shall have control of all
the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
Section 18. The President shall be the
Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof
under martial law…xxx…
Section 19. Except in cases of impeachment, or as
otherwise provided in this Constitution, the
President may grant reprieves, commutations,
and pardons, and remit fines and forfeitures, after
conviction by final judgment.
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He shall also have the power to grant amnesty with
the concurrence of a majority of all the Members of
the Congress.
Section 20. The President may contract or
guarantee foreign loans on behalf of the Republic
of the Philippines with the prior concurrence of the
Monetary Board, and subject to such limitations as
may be provided by law. The Monetary Board shall,
within thirty days from the end of every quarter of
the calendar year, submit to the Congress a
complete report of its decision on applications for
loans to be contracted or guaranteed by the
Government or government-owned and controlled
corporations which would have the effect of
increasing the foreign debt, and containing other
matters as may be provided by law.
xxx
Section 22. The President shall submit to the
Congress, within thirty days from the opening of
every regular session as the basis of the general
appropriations bill, a budget of expenditures and
sources of financing, including receipts from existing
and proposed revenue measures.
Section 23. The President shall address the
Congress at the opening of its regular session. He
may also appear before it at any other time.
305.
The Administrative Code of 1987103 on the other hand details
the specific powers granted to the President.
BOOK III
OFFICE OF THE PRESIDENT
Title I. POWERS OF THE PRESIDENT
CHAPTER 1. POWER OF CONTROL
Section 1.Power of Control. of all the executive
departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
103
Executive Order No. 292, July 25, 1987
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CHAPTER 2. ORDINANCE POWER
Section 2.Executive Orders.
Section 3.Administrative Orders.
Section 4.Proclamations.
Section 5.Memorandum Orders.
Section 6.Memorandum Circulars.
Section 7.General or Special Orders.
CHAPTER 3. POWER OVER ALIENS
Section 8.Power to Deport.
Section 9.Power to Change Non-Immigrant
Status of Aliens.
Section 10.Power to Countermand Decisions of
the Board of Commissioners of the Bureau of
Immigration.
Section 11.Power over Aliens under the General
Principles of International Law.
CHAPTER 4. POWERS OF EMINENT DOMAIN,
ESCHEAT, LAND RESERVATION AND RECOVERY
OF ILL-GOTTEN WEALTH
Section 12.Power of Eminent Domain.
Section 13.Power to Direct Escheat or Reversion
Proceedings.
Section 14.Power to Reserve Lands of the Public
and Private Domain of the Government.
Section 15.Power over Ill-gotten Wealth.
CHAPTER 5. POWER OF APPOINTMENT
Section 16.Power of Appointment. ‘
Section
17.Power
to
Issue
Temporary
Designation.
CHAPTER 6. GENERAL SUPERVISION OVER
LOCAL GOVERNMENTS
Section 18.General Supervision Over Local
Governments.
CHAPTER 7. OTHER POWERS
Section 19.Powers Under the Constitution. - The
President shall exercise such other powers as are
provided for in the Constitution.
Section 20.Residual Powers. - Unless Congress
provides otherwise, the President shall exercise
such other powers and functions vested in the
President which are provided for under the laws
and which are not specifically enumerated above,
or which are not delegated by the President in
accordance with law.
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306.
The exercise by the President of the above quoted powers is
subject to limitations and restrictions imposed by the Constitution. Adherence thereto and compliance therewith may, within
proper bounds, be inquired into by courts of justice. 104 In
Lansang vs. Garcia105, the Supreme Court ruled thus–
Pursuant to the principle of separation of powers
underlying our system of government, the
Executive is supreme within his own sphere.
However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes
hand in hand with the system of checks and
balances, under which the Executive is supreme,
as regards the suspension of the privilege, but
only if and when he acts within the sphere allotted
to him by the Basic Law, and the authority to
determine whether or not he has so acted is
vested in the Judicial Department, which, in this
respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the
Court is merely to check — not to supplant 22 — the
Executive, or to ascertain merely whether he had
gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in
him or to determine the wisdom of his act.
ON FOREIGN RELATIONS POWERS
307.
In their Consolidated Comment dated 10 October 2014, Respondents assert that the President (as Chief Architect of the
country’s foreign policy) has the authority and duty to enter into
agreements like EDCA for the defense of the national territory
and maintenance of regional security, thus –
As Chief Executive and architect of the nation’s
foreign policy, the President, through the DND,
negotiated and ratified the EDCA to implement
existing treaty commitments under the MDT and the
VFA. As Commander-in-Chief106 and protector of the
104
TeodosioLansang vs Brigadier-General Eduardo Garcia, G.R. No. L-33964
December 11, 1971
105
Lansang case, supra.
106
Constitution, Art. VII Sec. 18
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G.R. NO. 212444
Filipino people,107 the President entered into EDCA
to uphold the security interests of the Philippines.
xxx
As Chief Executive, Commander-in-Chief, and Chief
Architect of foreign policy, the President has the
constitutional authority and duty to enter into
agreements for the defense of national territory and
maintenance of regional security. The breadth and
scope of this constitutional authority is co-extensive
with the nature of the danger apprehended by the
President who has control over the national security
apparatus…
308. Indeed, foreign relations powers vest the President with authority to negotiate international agreements and treaties with other
states. However, in the exercise of such power, the limitations
and procedures provided under the 1987 Constitution and applicable statutes should be observed.
309.
In Sen. Aquilino Pimentel, Jr. et al vs. Executive Secretary
Alberto Romulo108, the Supreme Court described the foreign
relations power of the President and its limitations in this wise:
In our system of government, the President, being
the head of state, is regarded as the sole organ and
authority in external relations and is the country’s
sole representative with foreign nations. As the
chief architect of foreign policy, the President acts
as the country’s mouthpiece with respect to
international affairs. Hence, the President is vested
with the authority to deal with foreign states and
governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations.
In the realm of treaty-making, the President has the
sole authority to negotiate with other states.
x xx
Nonetheless, while the President has the sole
authority to negotiate and enter into treaties, the
107
Constitution, Art. II Sec. 3
108
G.R. No. 158088, 6 July 2005
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G.R. NO. 212444
Constitution provides a limitation to his power by
requiring the concurrence of 2/3 of all the members
of the Senate for the validity of the treaty entered
into by him. Section 21, Article VII of the 1987
Constitution provides that “no treaty or international
agreement shall be valid and effective unless
concurred in by at least two-thirds of all the
Members of the Senate.”
The participation of the legislative branch in the
treaty-making process was deemed essential to
provide a check on the executive in the field of
foreign relations. By requiring the concurrence of
the legislature in the treaties entered into by the
President, the Constitution ensures a healthy
system of checks and balance necessary in the
nation’s pursuit of political maturity and growth.
x xx
It should be emphasized that under our
Constitution, the power to ratify is vested in the
President, subject to the concurrence of the
Senate. The role of the Senate, however, is limited
only to giving or withholding its consent, or
concurrence, to the ratification. Hence, it is within
the authority of the President to refuse to submit a
treaty to the Senate or, having secured its consent
for its ratification, refuse to ratify it. (underscoring
supplied)
310.
In the latter case of Bayan Muna vs. Romulo109, the Supreme
Court reiterated such power of the President. The Supreme
Court held, thus:
The Constitution vests in the President the
power to enter into international agreements,
subject, in appropriate cases, to the required
concurrence votes of the Senate. But as earlier
indicated, executive agreements may be validly
entered into without such concurrence. 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
109
G.R. No. 159618, February 1, 2011
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G.R. NO. 212444
executive agreements has been confirmed by long
practice.
311.
One important limitation on the power of the President to enter
into international agreements is the required concurrence votes
of the Senate as required by the Constitution in “appropriate
cases”.
312.
The above-cited case of Bayan Muna vs. Romulo states when
Senate concurrence is needed:
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
Constitution110[46]––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.
313.
Sec. 25, Article XVIII of the Constitution provides:
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.
314. It is therefore clear that when it comes to international agreements involving foreign military bases, troops, or facilities, the
President’s power to enter into such agreements is limited by
Sec. 25 Article XVIII of the Constitution.
315.
110
As amply discussed, since the EDCA involves the entry of foreign military bases, troops or facilities, the power of the President to enter into such agreement must comply with Sec.
25 Article XVIII of the Constitution. Absent such compliance,
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G.R. NO. 212444
the EDCA is void. As held in the case of Gonzales vs. Hechanova111:
But, even assuming that said contracts may
properly be considered as executive agreements,
the same are unlawful, as well as null and void,
from a constitutional viewpoint, said agreements
being inconsistent with the provisions of Republic
Acts Nos. 2207 and 3452. Although the President
may, under the American constitutional system
enter into executive agreements without previous
legislative authority, he may not, by executive
agreement, enter into a transaction which is
prohibited by statutes enacted prior thereto. Under
the Constitution, the main function of the Executive
is to enforce laws enacted by Congress. The former
may not interfere in the performance of the
legislative powers of the latter, except in the
exercise of his veto power. He may not defeat
legislative enactments that have acquired the status
of law, by indirectly repealing the same through an
executive agreement providing for the performance
of the very act prohibited by said laws.
ON COMMANDER-IN-CHIEF POWERS
316.
In their Consolidated Comment, Respondents state that the
President entered into the EDCA pursuant to his constitutionally
granted powers as Commander-in-Chief. Respondents argue
that the EDCA is an executive agreement entered into by the
President in the performance of his duty to defend national security, to wit–
[T]he President, through the DND, entered into the
EDCA to implement the policies and treaty
commitments embodied in the MDT and the VFA to
advance the security interests of the Philippines.
xxx
The President is the Commander-in-Chief of the
Armed Forces of the Philippines, which is
constitutionally designated as “the protector of the
111
G.R. No. L-21897, October 22, 1963
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people and the State.”112…xxx…The President
entered into EDCA in the performance of his highest
constitutional duty, because he did so to protect the
integrity of the Philippine State.113
xxx
As Commander-in-Chief, it is the President’s duty to
take preparatory and preventive measures against
potential and actual threats to national security. This
constitutional authority must be given the widest
possible breathing space in order that the President
can select from a whole range of possible actions.
317.
The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins with the
simple declaration that “[t]he President shall be the Commander-in-Chief of all armed forces of the Philippines x xx” Outside
explicit constitutional limitations, such as those found in Section
5, Article XVI, the commander-in-chief clause vests on the
President, as commander-in-chief, absolute authority over
the persons and actions of the members of the armed
forces.114
318.
Section 18, Article VII grants the President, as Commander-inChief, a “sequence” of graduated powers. From the most to
the least benign, these are115
a.
b.
c.
319.
the calling-out power the power to suspend the privilege of the writ
of habeas corpus, and
the power to declare Martial Law.
In Integrated Bar of the Philippines v. Zamora,116 the Supreme Court ruled that the only criterion for the exercise of the
calling-out power is that “whenever it becomes necessary,”
Constitution, Art. II Sec.3
Territory is an integral part of a State. Montevideo Convention on the Rights and
Duties of States, 26 December 1933, Art. I. “The state as a person of international law
should possess the following qualifications: a) a permanent population; b) a defined
territory; c) government; and d) capacity to enter into relations with the other states.”
112
113
114
B/Gen. Francisco Gudani vs. Lt. Gen. GenerosoSenga, G.R. No. 170165,
August 15, 2006
115
Randolf David vs Gloria Macapagal-Arroyo G.R. No. 171396, May 3,
2006
Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000,
338 SCRA 81
116
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the President may call the armed forces “to prevent or suppress lawless violence, invasion or rebellion.”
When the President calls the armed forces to
prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary
power solely vested in his wisdom. This is clear
from the intent of the framers and from the text of
the Constitution itself. The Court, thus, cannot be
called upon to overrule the President’s wisdom
or substitute its own. However, this does not
prevent an examination of whether such power
was exercised within permissible constitutional
limits or whether it was exercised in a manner
constituting grave abuse of discretion. In view of
the constitutional intent to give the President full
discretionary power to determine the necessity of
calling out the armed forces, it is incumbent upon
the petitioner to show that the President’s decision
is totally bereft of factual basis.
There is a clear textual commitment under the
Constitution to bestow on the President full
discretionary power to call out the armed forces and
to determine the necessity for the exercise of such
power.117 (Emphasis supplied)
320.
Under the calling-out power, the President may summon the
armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But
every act that goes beyond the President’s calling-out power is
considered illegal or ultra vires. For this reason, a President
must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser
power. There lies the wisdom of our Constitution, the greater
the power, the greater are the limitations. (Randolf David vs.
Gloria Macapagal-Arroyo118)
321.
In Jamar Kulayan vs. Gov. Abdusakur Tan119 it was held that
only the President is vested with calling-out powers as the
commander-in-chief of the Republic.
117
392 Phil. 640.
118
G.R. No. 171396, May 3, 2006
G.R. No. 187298, July 03, 2012
119
100
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ii. The exceptional character of Commander-inChief powers dictate that they are exercised by one
president
Springing from the well-entrenched constitutional
precept of One President is the notion that there are
certain acts which, by their very nature, may only be
performed by the president as the Head of the
State. One of these acts or prerogatives is the
bundle of Commander-in-Chief powers to which the
"calling-out" powers constitutes a portion.
xxx
The power to declare a state of martial law is
subject to the Supreme Court’s authority to review
the factual basis thereof.120 By constitutional fiat, the
calling-out powers, which is of lesser gravity than
the power to declare martial law, is bestowed upon
the President alone. As noted in Villena, "(t)here are
certain constitutional powers and prerogatives of the
Chief Executive of the Nation which must be
exercised by him in person and no amount of
approval or ratification will validate the exercise of
any of those powers by any other person. Such, for
instance, is his power to suspend the writ of habeas
corpus and proclaim martial law x xx.121
Indeed, while the President is still a civilian, Article
II, Section 3122 of the Constitution mandates that
civilian authority is, at all times, supreme over the
military, making the civilian president the nation’s
supreme military leader… xxx … As Commander-inChief, he is authorized to direct the movements of
the naval and military forces placed by law at his
command, and to employ them in the manner he
may deem most effectual.123
322.
There is no provision dealing with the revocation by Congress or review by the Courts of the President’s action to
1987 Constitution, Art. VII, Sec. 18 (2).
67 Phil. 451 (1939).
122
The provisions reads: "Civilian authority is, at all times, supreme over the military.
The Armed Forces of the Philippines is the protector of the people and the State. Its goal
is to secure the sovereignty of the State and the integrity of the national territory.
123
Fr. Joaquin Bernas, S.J., The 1987 Philippine Constitution A Comprehensive
Reviewer, (2006), p. 290, citing Fleming v. Page, 9 How 603, 615 U.S. (1850).
120
121
101
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call out the armed forces. This distinction places the calling
out power in a different category,otherwise, the framers of the
Constitution would have simply lumped it together the two other
powers and provided for revocation and review without any
qualification.124
323.
124
On the other hand, Article VII Section 18 explicitly provides that
the Power to Suspend the Privilege of the Writ of Habeas
Corpus and thePower to Declare Martial Law may be revoked by Congress and may be subject to review by the courts.
These powers are shared and not exclusive to the President.
The requirements for the exercise of these powers are found in
the same Section 18. In Outline form, the requirements and
procedure are as follows:
a)
In case of invasion or rebellion, when the public safety requires it, the President may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial
law
b)
Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in
writing to the Congress.
c)
Congress, voting jointly, by a vote of at least a majority of all
its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be
set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined
by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
d)
The Congress, if not in session, shall within twenty-four
hours following such proclamation or suspension, convene
in accordance with its rules without need of a call.
e)
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof,
and must promulgate its decision thereon within thirty days
from its filing.
f)
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians
Jamar Kulayan vs. Gov. Abdusakur Tan, G.R. No. 187298, July 03, 2012
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
where civil courts are able to function, nor automatically suspend the privilege of the writ.
g) The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent
in or directly connected with invasion.
h) During the suspension of the privilege of the writ, any person
thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released.
324.
Respondents assert that the President validly entered into the
EDCA in proper exercise of his Commander-in-Chief Powers.
Throughout the Oral Arguments, the Acting Solicitor General repeatedly cited said powers as one of the sources of the President’s authority to enter into the EDCA.
ACTING SOLICITOR GENERAL HILBAY: …our position is
that the Filipino people have spoken. They have elected a
commander-in-chief.
That
commander-in-chief has
already acted pursuant to his commander-in-chief
powers which is what? To allow visiting forces pursuant to
the Visiting Forces Agreement and to allow the United States
and their contractors to improve our bases and preposition
materials.
325.
However, as already stated in the previous discussion on foreign relations powers, when it comes to international agreements involving foreign military bases, troops, or facilities,
the President’s power to enter into such agreements is limited by Sec. 25 Article XVIII of the Constitution.
326. In the course of the Oral Arguments, Justice Leonen stated
(and the Acting Solicitor General Agreed) that the powers of the
Commander-in-Chief are bordered by the provisions of the Constitution, to wit–
ACTING SOLICITOR GENERAL HILBAY: Your Honor, we should
allow the President to determine the boundaries of his own power.
The President has the…
JUSTICE LEONEN: Yes, but the boundaries of the power of the
Commander-in-Chief is always bordered by the provision of the
Constitution, would you agree with me?
ACTING SOLICITOR GENERAL HILBAY: That is true, Your
Honor, that is true.125
125
TSN of Oral Arguments, November 25, 2014, p. 138-140.
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G.R. NO. 212444
327.
Justice Leonen further stated that certain aspects of Commander-in-Chief Powers are shared by the President with Congress.
The Honorable Justice pointed to Article XVIII Section 25 as the
specific provision in the Constitution which frames the President’s power to act as commander-in-chief in the international
arena, to wit–
ASSOCIATE JUSTICE LEONEN: …I want to go into your
theory and that your theory is, everything here is part of the
President's power as commander-in-chief under Article 7,
Section 18, is that not correct?
ACTING SOLICITOR GENERAL HILBAY: Correct, Your
Honor.
ASSOCIATE JUSTICE LEONEN: Yes, but as commanderin-chief, of course, the President has to take care of internal
conflict and, therefore, he has the power to call out the
Armed Forces, declare a state of martial law, suspend the
privilege of the writ of habeas corpus among others, is that
not correct?
ACTING SOLICITOR GENERAL HILBAY: Correct, Your
Honor.
ASSOCIATE JUSTICE LEONEN: But then on the other
hand, his power as a commander-in-chief with respect to the
declaration of a state of war is shared with Congress, is that
not correct? Articles VI, Section 23, the power to declare a
state of war is with Congress and there is a specific method
of voting in terms of Congress, is that accurate in our
Constitution?
ACTING SOLICITOR GENERAL HILBAY: Your Honor,
there are complications with respect to thepower to...
(interrupted)
ASSOCIATE JUSTICE LEONEN: But that provision exists,
which means, therefore, that the power of the President as
commander-in-chief is shared in relation to the power to
make a war. Of course there is still the other provisions that
curtail or frame the power of the President, Article II, Section
7 that we should conduct independent foreign policy, Article
II, Section 8, nothing about nuclear weapons, etcetera.
Now, when the President deals as commander-in-chief with
foreign military forces, therefore, it is not only the
commander-in-chief provision that is involved but likewise
the creation of foreign policy, is that not correct?
ACTING SOLICITOR GENERAL HILBAY: That is correct,
Your Honor.
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ASSOCIATE JUSTICE LEONEN: And, therefore, there is a
very specific provision in the Constitution, which actually
frames the power of the President to act as commander-inchief in the international arena and that is Article 18, Section
25, as earlier mentioned, correct?
ACTING SOLICITOR GENERAL HILBAY: Well, to some
extent, yes.
ASSOCIATE JUSTICE LEONEN: Yes. And this Court is
tasked or our duty in terms of judicial review is to do the
bidding of the sovereign Filipino people expressed through
the Constitution not by the vote of the President but as what
the Constitution says, is that not correct? We allocate the
boundaries of power, is that not correct?
ACTING SOLICITOR GENERAL HILBAY: Well, we have to
have a case, Your Honor.
ASSOCIATE JUSTICE LEONEN: Yes, with all the
qualifications of justiciability and jurisdiction, of course.....
ACTING SOLICITOR GENERAL HILBAY: Yes, Your
Honor.
ASSOCIATE JUSTICE LEONEN: ...that is part of judicial
review. So the question before us, as we have always been
telling you is whether we interpret Article 18, Section 25 and
how we interpret it, correct?
ACTING SOLICITOR GENERAL HILBAY: Yes, correct,
Your Honor.
328.
Clearly, therefore, the Commander-in-Chief Powers of the President cannot give validity to the EDCA in light of the clear absence of compliance with the requirements in Sec. 25 Art. XVIII
of the Constitution as well as the various other constitutional
provisions and statutes which EDCA directly violates and contravenes.
THE EDCA GIVES THE US FORCES AND US
CONTRACTORS
UNRESTRICTED
ACCESS,
UNHAMPERED MOVEMENT AND UNBRIDLED RIGHTS
IN THE PHILIPPINES IN DEROGATION OF OUR
SOVEREIGNITY.
III.
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329.
The Philippine foreign policy is anchored on the Constitution,
which the President must obey. Specifically, sections 2 & 7, Article II of the Constitution provide that in the country’s relations
with other states the paramount consideration shall be national
sovereignty, territorial integrity, national interest, and the right to
self-determination, and that the country adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with all
nations. Thus,
ARTICLE II
Declaration of Principles and State Policies
Principles
SECTION 1.
The Philippines is a democratic and
republican State. Sovereignty resides in the people and all
government authority emanates from them.
SECTION 2.
The Philippines renounces war as an
instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
Xxxx
SECTION 7.
The State shall pursue an independent foreign
policy. In its relations with other states the paramount
consideration shall be national sovereignty, territorial
integrity, national interest, and the right to self-determination.
330. Any concept of Sovereignty must necessarily connote that a
State exercises the powers of government over a certain
territory and population.
331.
Sovereignty in the sense of contemporary international law
denotes the basic international legal status of a State that is not
subject, within its territorial jurisdiction, to the governmental,
executive, legislative, or judicial jurisdiction of a foreign State or
to foreign law other than public international law. 126
332. Sovereignty is therefore the unbridled exercise of the State’s
powers all throughout its territory without external interference.
Steinberger, Helmut, “Sovereignty”, in Bernhardt, R. (ed.), Encyclopedia of
Public International Law, Vol. IV (Amsterdam, etc.: Elsvier, 2000), at 511.
126
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G.R. NO. 212444
333.
In this case, however, the totality of rights and privileges
granted to the US forces and contractors under the EDCA gives
unrestricted access, unhampered movement and unbridled
rights to US forces and contractors in the Philippines in
derogation of our sovereignty.
334.
Thus, under the EDCA –
a. The US forces, US contractors, and others as mutually agreed
by the parties shall have the right to access and use Agreed
Locations pursuant to the Agreement;
b. The US forces, US contractors, and vehicles, vessels, and
aircraft operated by or for US forces are authorized to conduct,
the following activities, with respect to Agreed Locations:
training; transit; support and related activities; refueling of
aircraft; bunkering of vessels; temporary maintenance of
vehicles, vessels and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment,
supplies, and material; deploying forces and material; and such
other activities as the Parties may agree;
c. The US shall have operational control of Agreed Locations for
construction activities and authority to undertake such activities
on the Agreed Locations;
d. US forces are authorized to exercise all rights and authorities
within the Agreed Locations that are necessary for their
operational control or defense, including the blanket authority
to take appropriate measures to protect US forces and US
contractors. The US should only coordinate such measures
with appropriate authorities of the Philippines.
e. The US forces are authorized to preposition and store defense
equipment, supplies, and materiel (“prepositioned materiel”) at
Agreed Locations.
f. The prepositioned materiel shall be for the exclusive use of US
forces, and full title to such defense equipment, supplies, and
materiel remains with the US forces.
107
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US forces shall have control over the access to and disposition
of such prepositioned materiel and shall have the unencumbered right to remove such prepositioned materiel at any
time from the territory of the Philippines;
g.
The US forces and US 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
material;
On the other hand, the Philippine Designated Authority and its
authorized representative have to undergo operational safety
and security requirements before they could gain access to the
Agreed Locations.
h.
The Philippines shall make Agreed Locations available to US
forces without rental or similar costs.
i.
The US forces and US contractors are granted the use of water,
electricity, and other public utilities on terms and conditions,
including rates or charges, no less favorable than those
available to the AFP or the government, less charges for taxes
and similar fees, which will be for the account of the Philippine
Government. US forces’ costs shall be equal to their pro rata
share of the use of such utilities.
The US is authorized to operate its own telecommunication
systems and the right to use all necessary radio spectrum
allocated for this purpose. The use of radio spectrum shall be
free of cost to the US.
j.
k.
While the Philippines shall retain ownership of and title to
Agreed Locations, the US shall return to the Philippines any
Agreed Locations, or any portion thereof, including non-relocatable structures, once no longer required by US forces for
activities under this Agreement.
The Parties of the Designated Authorities shall consult regarding the terms of return of any Agreed Locations, including possible compensation for improvements or construction.
Permanent buildings constructed by US forces become the
property of the Philippines, once constructed, but shall be
used by US forces until no longer required by US forces.
108
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G.R. NO. 212444
l.
The US forces and US contractors shall retain title to all equipment, material, supplies, relocatable structures, and other
moveable property that have been imported into or acquired
within the territory of the Philippines by or on behalf of US
forces.
m.
Even in areas outside the boundaries of the agreed locations,
the US forces and contractors have unhampered access and
unbridled rights. When requested, the Designated Authority of
the Philippines shall assist in facilitating transit or temporary
access by US forces to public land and facilities (including
roads, ports, and airfields), including those owned or controlled
by local governments, and to other land and facilities (including
roads, ports, and airfields).
335.
The US forces shall enjoy all these rights and privileges for an
initial term of TEN YEARS, and thereafter, it shall continue in
force automatically unless terminated by either party.
336.
The US forces and contractors may exercise such rights and
privileges on Agreed Locations that are not only limitless both in
terms of number and place but also boundless and unidentified
as the Philippine and US authorities may provide for them in the
yet unwritten or unpublished Annex of EDCA.
337. The Philippine and US authorities may still insert additional or
expanded Agreed Locations in its “implementing arrangements”
as provided under Article II, Paragraph 4 of EDCA.
338.
The Philippine and US authorities may place these so-called
Agreed Locations anywhere in the Philippines and may not
even be clearly listed or described at all. Additionally, the fact
that the Philippine and US authorities could insert agreed
locations at any time after the Annex is appended through mere
“implementing arrangements” renders the entire process nontransparent since they may surreptitiously add new or
expanded agreed locations long after the EDCA is in motion
hidden from public view.
339. The identification and determination of “Agreed Locations” will
be subject to negotiations only by the respondents and the
representatives of the US and will not be subject to the scrutiny
of the public and of Congress.
109
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G.R. NO. 212444
340.
The agreement does not also set any limits on what areas
throughout the country that US troops can access, the number
of US troops that can access these areas or facilities, and the
duration of their stay.
341.
In sum, the EDCA allows unlimited number of US troops to be
stationed, together with their unlimited number of prepositioned
war vessels and weapons; in unspecified and unlimited number
of so-called agreed locations anywhere in the country, to be
provided by the Philippine government.
342.
A simple reading of the provisions of EDCA clearly shows that
the respondents and the President committed grave abuse of
discretion in granting the US forces and contractors unrestricted
access, unhampered movement and unbridled rights in the
Philippines in derogation of our sovereignty.
343. The respondents claim that EDCA will further benefit the Philippines through the provision of jobs and other economic opportunities in the construction activities.
344. It is significant to note however that EDCA does not require the
US to give preferential treatment to Filipino contractors to build
facilities in agreed locations or supply the needs of US troops.
On the contrary, it gives the US the exclusive right to choose its
own contractors and suppliers.
345. What EDCA merely requires is for the US to make the best effort to fire Filipino contractors and suppliers. Thus, Article VIII,
paragraph 2 states: United States forces shall strive to use
Philippine suppliers of goods, products, and services to the
greatest extent practicable in accordance with the laws and regulations of the United States.”
346. The possible economic “benefit” that Filipinos may have under
EDCA is as source of cheap labor. Filipino workers may be
hired to perform construction work and other low-paying jobs,
such as laundry work, cooking, cleaning and other support
tasks necessary to operate military facilities. However, these
workers are vulnerable to abuse since EDCA does not provide
protection mechanism to workers.
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G.R. NO. 212444
347. Article XI of the EDCA explicitly provides that “The Parties
agree to resolve 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.”
348.
So what did the Philippines actually get from the Agreement?
Well,
a.
The Philippine Designated Authority or his representative
is given access to Agreed locations subject to the operational and security requirements and measures of US
forces;
b.
an “assurance” that no nuclear weapons will be stored in
the country, even as nuclear-powered, and most probably
armed, submarines, aircraft carriers, and warships are allowed transit on Philippine seas and regularly dock in the
country’s ports;
c.
a provision that the US shall “strive” to use Philippine supplier of goods, products and services “to the greatest extent practicable in accordance with the laws and regulations of the United States”;
d.
a confirmation of “intent” to “respect relevant Philippine environmental, health, and safety laws, regulations and
standards in the execution of its policies”;
e.
an “assurance” that US forces will not “intentionally release any hazardous materials or hazardous waste owned
by it and, if a spill occurs, shall expeditiously take action in
order to contain and address environmental contamination
resulting from the spill”;
f.
a vague reference on probable US support to the modernization of the AFP, citing Article II of the Mutual Defense
Treaty, that: “the Parties separately and jointly by self-help
and mutual aid will maintain and develop their individual
111
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RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
and collective capacity to resist armed attack,” and within
the context of the VFA. This includes:
i.
349.
supporting the Parties’ shared goal of improving interoperability of the Parties’ forces, and for the AFP addressing capabilities gaps, promoting long-term modernization, and helping maintain and develop additional
maritime security maritime domain awareness, and humanitarian assistance and disaster relief capabilities.
Clearly, not only is EDCA grossly one-sided and greatly
disadvantageous to the Filipino people, EDCA also constitutes
a derogation of our country’s dignity and an unconscionable
sellout of our sovereignty.
RESPONDENTS COMMITTED GRAVE ABUSE
OF DISCRETION BY WAIVING OUR NATIONAL
INTEREST IN ENTERING INTO THE EDCA WHICH IS
OUTRIGHTLY LOPSIDED IN FAVOR OF THE U.S.
IV.
350.
Under Article II, Section 7 of the Constitution, “The State shall
pursue an independent foreign policy. In its relations with
other states the paramount consideration shall be national
sovereignty, territorial integrity, national interest, and the
right to self-determination.”
351.
Fr. Joaquin Bernas explained in his book that this provision is
the “closest reference to military bases that a dominant majority
in the Constitutional Commission would allow in the body of the
Constitution.”127
352.
National interest is defined as “the interest of a nation as a
whole held to be an independent entity separate from the interests of subordinate areas or groups and also of other nations
or supranational groups.” 128 It is “a matter which has or could
have impact upon all other members of society.”129
The 1987 Constitution of the Philippines, A Commentary, 2009 edition, p. 71.
http://www.merriam-webster.com/dictionary/national%20interest with reference to
H. J. Morgenthau.
129
http://www.duhaime.org/LegalDictionary/N/NationalInterest.aspx
127
128
112
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
353.
In “Philippine Treaty Law and Practice” 130 written by Ambassador J. Eduardo Malaya, respondent herein, and Maria Antonina
Mendoza-Oblena, they admit that the “substantive content of
Philippine foreign policy is anchored on the Constitution, specifically the precepts that in the country’s relations with other
states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to
self-determination, and that the country adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with
all nations,” citing Article II, Sections 2 and 7 of the Constitution.
354.
Despite the clear mandate of this constitutional provision, however, respondents entered into the unequal agreement called
EDCA in betrayal of our national interest.
355.
Contrary to the lies being peddled by the government that the
EDCA is beneficial to the Philippines, a painstaking examination
of the provisions of the EDCA undeniably shows that it is replete with provisions which are unjust, disadvantageous and
prejudicial to our national interest, and inimical to public policy
and our public interest.
The respondents have allowed
under the EDCA the use by US
forces
of
Philippine
real
property, whether public or
private, without rent.
--------------------------------------------356.
Article III, paragraph 3 of the EDCA (Agreed Locations)
provides that: “Given the mutuality of benefits, the parties agree
that the Philippines shall make Agreed Locations available to
the United States forces without rental or similar costs.”
357.
This rent-free provision in the EDCA is shocking and exceeds
the bounds of reason. For apart from surrendering unlimited
portions of our land all over the Philippines for so-called
“agreed locations”, our country will not be compensated at all,
not even with a paltry sum.
358. Thus, Justice Teresita De Castro expressed her views that:
Published in the Integrated Bar of the Philippines Journal, Vol. 35, No. 1, August
2010, pp. 1-17.
130
113
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
JUSTICE DE CASTRO: I just want to know if you agree that we gave tax
exemption.
ACTING SOLICITOR GENERAL HILBAY: That is true.
JUSTICE DE CASTRO: We exempt them from immigration rules.
ACTING SOLICITOR GENERAL HILBAY: That is true, Your Honor.
JUSTICE DE CASTRO: We did not ask them to pay rent, we waived
criminal jurisdiction but they did not waive criminal jurisdiction, which
means that they are on the receiving end, we are the ones giving
concessions to the U.S. And because of that, there is no need for them to
go to the Senate for concurrence; there is no need for a treaty because
everything that they entered into in the agreement with the Philippines
would only involve all the constitutional prerogative of the U.S. President
as Commander-in-Chief of the Armed Forces.
ACTING SOLICITOR GENERAL HILBAY: That is true, that is true, Your
Honor.131
359. It is of no moment that the second sentence of Article III, paragraph 3 of the EDCA states that: “United States forces shall
cover their necessary operational expenses with respect to their
activities at the Agreed Locations.” That is stating the obvious
consequence of US forces’ activities at the agreed locations.
On the other hand, it merely emphasizes its inconsistency with
paragraph 6 of the same Article and with Article X, paragraph 1,
which provide that:
“United States forces shall be responsible on the
basis of proportionate use for construction,
development, operation, and maintenance costs at
Agreed Locations. Specific funding arrangements
may be defined in implementing arrangements.”
(Article III, par. 6)
“All obligations under this Agreement are subject to
the availability of appropriated funds authorized for
these purposes.” (Article X, Par. 1)
360.
131
132
As observed by Justice Reyes,132 thus:
TSN, November 25, 2014, p. 71
Ibid., at pp. 129-130.
114
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
ASSOCIATE JUSTICE REYES: I just want to be clarified on certain
matters affecting EDCA provisions for my own enlightenment. Article 10 of
the EDCA states that all obligations under this agreement are subject to
the availability of appropriated funds authorized for these purposes.
ACTING SOLICITOR GENERAL HILBAY: Yes, Your Honor.
ASSOCIATE JUSTICE REYES: On the other hand, Article 3, Section 6
states that the “United States forces shall be responsible on the basis of
proportionate use for construction, development, operation and
maintenance costs at Agreed Locations. Specific funding arrangements
may be defined in implementing arrangements," correct, Counsel.
ACTING SOLICITOR GENERAL HILBAY: Yes, Your Honor.
ASSOCIATE JUSTICE REYES: Will you agree that a harmonious reading
of these provisions means that the Philippines will have to shell out also
public funds for the construction, maintenance, development of Agreed
Locations, this is notwithstanding the fact that under Article 3, Section 3,
we are obliged to provide the United States with Agreed Locations free of
rental cost? How would you harmonize that provisions, Mr. Counsel?
ACTING SOLICITOR GENERAL HILBAY: Your Honor, I think the
commitment of the United States here is that they will assist in the
improvement of our bases and facilities; to what extent they will assist, the
specific sharing between the Philippines and the United States will have to
be done through the implementing agreements…
ASSOCIATE JUSTICE REYES: So I'm correct with my interpretation that
the Philippine Government will also provide some public fundings?
ACTING SOLICITOR GENERAL HILBAY: What is clear, for example,
Your Honor, is that, we will assume the tax liability for the use of utilities
and water, for example, that is very clear. And so it's not a tax exemption
but it's a tax assumption mechanism…
361.
Ironically and absurdly, the Philippines may even compensate
the US for the “improvements or construction” made on the
Agreed Locations as stipulated in Article V, paragraph 2, thus:
“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 of the Designated Authorities shall consult
regarding the terms of the return of any Agreed
Locations, including possible compensation for
improvements or construction.”
115
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
362. This provision on possible compensation for improvements or
construction is worse than what the Military Bases Agreement
of 1947 provided in its Article XVII, paragraph 2, to wit:
Article XVII
Removal of Improvements
Xxx
2. All buildings and structures which are erected
by the United States in the bases shall be the
property of the United States… The United States is
not obligated to turn over the bases to the
Philippines at the expiration of this Agreement or the
earlier relinquishment of any bases in the condition
in which they were at the time of their occupation,
nor is the Philippines obliged to make any
compensation to the United States for the
improvements made in the bases or for the
buildings or structures left thereon, all of which
shall become the property of the Philippines
upon the termination of the Agreement or the
earlier relinquishment by the United States of
the bases where the structures have been built.
363. It is not true, therefore, as the respondents would want us to
believe that the EDCA will benefit the Philippines. On the contrary, under the EDCA the Philippines may even be made to pay
for the improvements or construction once the United States
has used and no longer requires them.
Respondents have given up the
use of our public utilities and
radio spectrum for free, without
taxes and fees.
--------------------------------------------364. The Philippines has also yielded to US forces and personnel
and US contractors under the EDCA the use of our public utilities without taxes and fees and of radio spectrum for free, thus:
“Article VII
116
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
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 favorable 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.
2.
The Parties recognize that it may be necessary for
United States forces to use the radio spectrum.
The Philippines authorizes the United States to
operate its own telecommunication systems (as
telecommunication is defined in the 1991 Constitution and Convention of the International Telecommunication Union [“ITU”]). This shall include the
right to utilize such means and services as required
to ensure the full ability to operate telecommunication systems, and the right to use all necessary radio spectrum allocated for this purpose. Consistent
with the 1992 Constitution and Convention of the
ITU, United States forces shall not interfere with frequencies in use by local operators. Use of the radio spectrum shall be free of cost to the United
States.”
365. The above provisions plainly treats US forces and contractors
as more privileged than and discriminates against ordinary
Filipino citizens or corporations, as the former will pay less and
will not be charged with taxes and fees in the use of water,
electricity and other public utilities. In fact, the taxes for the use
of Philippine facilities will be paid under the account of the Philippine government. It would be the Philippine government subsidizing the taxes of the US forces and their private contractors,
including the multi-billion dollar companies that are part of the
US military industrial complex. No other private company in the
Philippines enjoys this privilege at the moment.
366. This unequal provision in the EDCA did not escape the observation of Justice Teresita De Castro, thus:
117
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
JUSTICE DE CASTRO: We gave tax exemptions.
ACTING SOLICITOR GENERAL HILBAY: Under the EDCA, Your Honor?
JUSTICE DE CASTRO: Under the… even the Visiting Forces Agreement.
ACTING SOLICITOR GENERAL HILBAY: Your Honor, under the EDCA
it's tax assumption.
JUSTICE DE CASTRO: No, no, here an it's also tax exempt here in the
EDCA?
ACTING SOLICITOR GENERAL HILBAY: Tax assumption, Your Honor,
we do not consider the United States tax-exempt. We will simply assume
those taxes, meaning that, the Philippine Government will pay. 133
367. For want of a justification for the provision on tax exemptions,
respondents, through the Acting Solicitor General, in a
desperate attempt to avoid the use of “tax exemption” instead
called it “tax assumption”. They explained that the Philippines
“will simply assume those taxes.” This is another absurdity.
Logic dictates that a government which exercises and wields
the taxing power cannot tax itself.
368.
Even the use of radio spectrum is given away to the US (not
merely to US forces and contractors) for free. Not only are
these EDCA provisions inimical to our national interest, more
importantly, they violate the following constitutional provisions:
Section 28. (1) The rule of taxation shall be uniform
and equitable. Xxxx
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.
369. A similar provision on the tax-free use by the United States of
our public utilities is found in the MBA of 1947, thus:
Article VII
Use of Public Services
133
Ibid., p. 69.
118
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
It is mutually agreed that the United States
may employ and use for United States military
forces any and all public utilities, other services
and facilities…in the Philippines under conditions
no less favorable than those that may be
applicable from time to time to the military
forces of the Philippines.
370. To reiterate, unlike ordinary Filipinos/corporations, US forces
and US contractors are given favored treatment as they are not
charged under the EDCA with payment of taxes and fees in the
use of water, electricity and other public utilities in our own land.
This is no doubt a violation of the equal protection clause.
Respondents granted the US
forces the option to choose the
contractor, supplier, or person
who will provide the materiel,
supplies,
equipment,
or
services in agreed locations
and
activities,
but
in
accordance with the laws and
regulations of the Unites States.
---------------------------------------------371. Article VIII of the EDCA on Contracting Procedures further
provides that:
“1. 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
Unites States.”
372.
In relation thereto, it is well to restate Article II, paragraph 3 of
EDCA, which defines United States contractors as “companies
and firms, and their employees, under contract or subcontract
to or on behalf of the United States Department of Defense.”
119
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
They are “not included as part of the definition of United states
personnel” in EDCA as well as in the VFA.
373.
To reiterate, under the EDCA, the US is vested with the sole
and plenary power to choose the contractor. The Philippines
has no say at all, much less to refuse the entry into our country
of notorious US private military contractors (PMCs) that reportedly have served as mercenaries of the US forces. It has
been reported that these private military contractors are employed to carry out illegal or criminal acts for the US, including
torture, rendition and other human rights violations. This way,
they say, the US is able to extricate its forces from direct liability.
374.
An example of these infamous private military contractors is
DynCorp International which has been in the Philippines since
2002 “fencing off a facility of the Joint Special Operations Task
Force-Philippines (JSOTF-P) within the Edwin Andrews Air
Base in Zamboanga City,”134 denying access thereto even to
Filipino camp commanders, as revealed by the military whistleblower, former Navy Lt. Senior Grade Mary Nancy Gadian
who had many direct dealings with US troops in Mindanao and
who exposed the various offenses committed by US troops in
the Philippines.
375.
The article adverted to in the preceding paragraph conservative
American journalist Tucker Carlson who wrote in Esquire in
March 2004, describing DynCorp as “an American firm that specializes in high-risk contract work for the Pentagon and the
State Department.” He further wrote:
“Pick an unsafe country and DynCorp is likely to be there. In
Afghanistan, DynCorp bodyguards protect Hamid Karzai, the most
imperiled president on earth. In Colombia, DynCorp pilots fly cocakilling crop dusters slow and low over drug plantations, an integral
part of Washington’s Plan Colombia. DynCorp is in Kosovo, Israel
(three of its employees were blown up and killed in Gaza last year),
East Timor, Sarajevo, Saudi Arabia, the Philippines, Liberia, and
many other sketchy places. Last spring, DynCorp – along with Kroll
Inc. and as many as twenty other large private security companies,
and perhaps dozens of smaller ones, employing tens of thousands
of individual contractors – came to Iraq.”
From an article, “What’s a Notorious US Military Contractor Doing Inside the
AFP’s Camp in Zamboanga?” by Alexander Martin Remollino, Bulatlat.com, September
12, 2009.
134
120
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
376.
In the book Shadow Force: Private Security Contractors in Iraq
by David Isenberg135, DynCorp was depicted as:
“An account from the actor Sean Penn, in describing a trip he made
to Baghdad, demonstrates how hyperbolic the discussion of PMCs can be:
As the rifle concussion vibrates through my head, so does the
name DynCorp. I’ve since done a little research, and here’s what I
found: DynCorp is a ubiquitous presence in Baghdad. A PMC, or
private military corporation, DynCorp was started in the late ‘40s
and given a big recruiting boost by the post-Church Commission
firings of thousands of CIA operatives by President Carter in the
late ‘70s.
PMCs, and there are many of them, tend to be staffed and directed
by retired generals, CIA officers, counterterrorism professionals,
retires Special Air Service men, Special Forces guys and so on.
DynCorp is a subsidiary of the benignly named Computer Sciences
Corporation. DynCorp forces are mercenaries. Their combats
have included covert actions for the CIA in Colombia, Peru,
Kosovo, Albania and Afghanistan.”
377.
378.
Another disreputable PMC is Blackwater USA which was renamed Worldwide in 2007, Xe Services in 2009, and Academi in 2011, due to scandals over misbehavior by its employees in Iraq. It was founded by former Navy SEAL and fundamentalist Christian Erik Prince. 136
Blackwater was sued under the Alien Tort Claims Act on behalf
of an injured Iraqi and the families of three of 17 Iraqis killed by
Blackwater employees during the September 16, 2007, Blackwater Baghdad shootings.137
379.
In August 2012, the company agreed to pay $7.5 million in
fines, without admitting guilt, to the US government to settle
various charges. Most of the charges were dropped in February 2013 when it was revealed that the employees were acting under the orders of the US government.138
380.
Even in the recent Ukrainian crisis, Russian News Agency has
reported that ‘"mercenaries" from Greystone, Ltd., a contractor
formally affiliated with Academi, were disguising themselves as
135
Published by Praeger, December 30, 2008
136
http://www.nndb.com/company/462/000105147/
137
http://en.wikipedia.org/wiki/Blackwater_Worldwide
Ibid.
138
121
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Ukrainian troops’… ‘Videos that showed what was described
as "heavily armed troops" composed of Blackwater and Greystone employees surfaced online in the weeks prior to the allegations.’139
381. Pressed for comment on the existence of these US military contractors, especially the notorious ones, during the oral arguments on the instant petitions, respondents, through the Acting
Solicitor General, feigned ignorance thereof and dismissed this
issue as a fantasy available only in popular books, while conceding that the US may possibly employ such contractors, thus:
JUSTICE LEONEN: Okay. In relation to the VFA and the 1991 Treaty they
do not mention the concept of a “contractor.” Can you enlighten us what
the concept of a “contractor” is in the Agreement in the EDCA?
ACTING SOLICITOR GENERAL HILBAY: “Contractors," Your Honor, are
private contractors with a contract from the United States Military.
JUSTICE LEONEN: What is your position in relation to the petitioners’
allegations that the contractors, meaning military contractors, in the form
of corporations like Dyncorp or Blackwater, etc.
ACTING SOLICITOR GENERAL HILBAY: It's very clear, Your Honor, in
Article II, paragraph (3), and I would consider this one of the strongest
points for EDCA, the definition of “contractors.” _ “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 the United States personnel in this Agreement, including
within the context of the VFA. And therefore they will be treated, Your
Honor, as ordinary business people coming here to the Philippines. They
cannot take advantage of the VFA, some of the immunities under the VFA,
and so the VFA which applies to military personnel. They will be treated as
ordinary visitors and business people performing contracts in the
Philippines.
JUSTICE LEONEN: Article II, Definition, subparagraph (3), means
“Companies and firms and their employees under contract or subcontract
to or on behalf of the United States Department of Defense." So, does this
exclude the concept of DynCorp or Black Water?
ACTING SOLICITOR GENERAL HILBAY: Your Honor, I don't think I
have the authority to discuss what is written in popular books, you know,
for purposes of determining constitutional law.
JUSTICE LEONEN: Because there are indeed contracts entered to by the
United States for this form of, people call them “mercenary”…
ACTING SOLICITOR GENERAL HILBAY: Yes, Your Honor, well ah
139
Ibid.
122
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
JUSTICE LEONEN: …to conduct their activities for security personnel.
ACTING SOLICITOR GENERAL HILBAY: I don't know, Your Honor,
whether they are mercenaries but I don't even know which kinds of
contractors will be allowed here.
JUSTICE LEONEN: As a matter of fact…
ACTING SOLICITOR GENERAL HILBAY: But if you are going to look at
the EDCA, Your Honor, and it's focused on construction, barracks and
airports, and ports and runways. I cannot imagine, you know, how
JUSTICE LEONEN: Yes, that is a type of contractor and of course that is
not the issue put into question by the petitions that have been filed in this
case.
ACTING SOLICITOR GENERAL HILBAY: Yes, Your Honor, but those
are not facts; those are allegations based on books, based on popular
books. Why, why we should indulge petitioners in their, you know, in their
fantasies about these things in the Supreme Court, Your Honor.
JUSTICE LEONEN: Because it's not a fantasy. Because in Afghanistan,
in Iraq, the United States did in fact engage a lot of contractors.
ACTING SOLICITOR GENERAL HILBAY: The fact that they were hired,
but with respect to the activities of those who were hired, these are subject
to popular books, Your Honor, this is not
JUSTICE LEONEN: So, is it the position of the Government that the
United States will never contract these security companies here in the
Philippines in any of the Agreed Locations or for any of the activities
mentioned in EDCA?
ACTING SOLICITOR GENERAL HILBAY: I don't know, Your Honor, what
is simply, what's simply says here is that the United States
JUSTICE LEONEN: So it is possible.
ACTING SOLICITOR GENERAL HILBAY: It is possible that the United
States can hire because, there is no limitation in… 140
382.
The grant to the US of the unbridled authority to select its contractors poses great danger to the safety and security of the
Filipino people. It ought to be considered that despite DynCorp’s notoriety worldwide, for example, the US still awarded it
a contract modification valued at $44.9 million, under a previously awarded Naval Facilities Engineering Command-Pacific contract to provide operations support services within
the Republic of the Philippines.141
140
Ibid., pp. 39-42.
123
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
383.
The DFA primer on EDCA released prior to its signing, stated
that “the Agreement will further benefit the Philippines economically through the provision of jobs and other economic opportunities in the construction activities in the Agreed Locations and procurement of local goods and supplies by the US
military and personnel.” This is a pure lie.
384.
Nothing in the afore-quoted provision indicates that priority
shall be given to Filipinos in terms of jobs and in the contracting of supplies, equipment or services for the construction of
US facilities here. Proof of this are the following:
a.
US forces have “no restriction as to choice, contractor, supplier,
or person who provides such materiel, supplies, equipment, or
services” in accordance with the laws and regulations of the
US. (Article VIII, par. 1)
b.
“United States forces shall” MERELY “strive to use Philippine
suppliers of goods, products, and services to the greater extent
practicable in accordance with the laws and regulations of the
United States.” (Article VIII, par. 2)
385. Plainly, there is no commitment from the US that it would use
Philippine suppliers of goods, products and services in the construction of and other activities in the Agreed Locations.
386. Moreover, in case the US decides to get the goods, products
and services from Philippine suppliers, the laws and regulations
of the US shall apply. There is no provision in the EDCA that
would grant the same tax-free and charges-free privilege to
Philippine suppliers as are granted to US contractors.
387. Clearly, the promised jobs and other economic opportunities being heralded by the respondents were obviously only made-up
to deceive the Filipino people into believing in the supposed
gains from the EDCA.
EDCA violates the constitutional
provision against the presence of
nuclear weapons in Philippine
territory.
-----------------------------------------------------Phil. Defense Forces Forum at
http://s3.zetaboards.com/Defense_Philippines/topic/7637046/1/
141
124
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
388.
Another misleading provision in the EDCA is that “The prepositioned materiel shall not include nuclear weapons” (Article
IV, par. 6).
389. Article II of our Constitution is clear on the Philippine policy
against nuclear weapons, thus:
Section 2. The Philippines renounces war as
an instrument of national policy, adopts the
generally accepted principles of international law as
part of the law of the land and adheres to the policy
of peace, equality, justice, freedom, cooperation,
and amity with all nations.
Section 8. The Philippines, consistent with
the national interest, adopts and pursues a policy
of freedom from nuclear weapons in its territory.
390. As it is, however, Article IV, par. 6 of the EDCA does not prohibit
nuclear weapons. It merely provides that nuclear weapons will
not be among the prepositioned materiel.
391. Nowhere in the EDCA is it provided that warships and aircrafts
carrying nuclear weapons are absolutely barred from Philippine
territory. Thus, although the EDCA prohibits the prepositioning
of nuclear weapons, it is possible that US warships and aircrafts may bring into the country said nuclear weapons in violation of the above principles and state policy declared in our
Constitution.
392. To make matters worse, the Philippines has no way of monitoring the entry of nuclear weapons because of the following Article IV provisions in the EDCA denying us access to US prepositioned materiel:
“3. The prepositioned materiel of United States
forces shall be for the exclusive use of United
States forces, and full title to all such equipment,
supplies, and materiel remains with the United
States. United States forces shall have control
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over the access to and disposition of such
prepositioned materiel and shall have the
unencumbered right to remove such prepositioned
materiel at any time from the territory of the
Philippines.
4.
United States forces and United States
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.”
393. It is instructive at this point to refer to Fr. Bernas’ enlightened
discussion on the meaning and implication of Article II, Section
8 of the Constitution, to wit:
The original formulation of this provision read thus:
“The Philippines is a nuclear-free country. No portion of
its territory shall be used for the purpose of storing or
stockpiling nuclear weapons, devices or parts thereof.”
Speaking for the provision, Commissioner Azcuna said:
I do not have to elaborate, Madame President, the
enormous destructive capacity of nuclear weapons,
particularly, because Asia has had the distinct misfortune
of being the only place in the world where nuclear
weapons were dropped and exploded during war. It was
not too long ago that Asia and the world commemorated
that fateful event. Since the dropping of atomic bombs in
Japan towards the end of World War II, the technology of
nuclear weapons has multiplied tremendously such that
the weapons dropped in Japan are only used as trigger
devices for the weapons of today. Those bombs were
merely atomic bombs. The bombs of today are hydrogen
bombs. Those bombs merely used fission as a principle.
The bombs of today use fusion, the very power of the sun
– fusion of nuclear particles, releasing tremendous
energy.
An explosion of a nuclear bomb, Madam
President, is considered an uncontrolled nuclear
reactions. That is the definition of a nuclear explosion.
What we seek to prevent from happening within our land
is the occurrence of an uncontrolled nuclear reaction.
Why put it in the Constitution? Why not leave it to the
President, why not leave it to the Senate, to deal with
these matters? Madam President, we are here framing a
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constitution. We are here in that part of the Constitution
which we call the Article of the Declaration of Principles.
We say that the Constitution is a reflection of the
aspirations and the ideals, and even the fears, of our
people. They why be silent about this?
The provision, as it stands now, raises two
questions. First, what are banned by the provision?
Second, how absolute is the ban?
Clearly, the ban is only on nuclear arms – that is,
the use and stockpiling of nuclear weapons, devices, and
parts thereof.
And this includes, according to
Commissioner Azcuna “not only possessing, controlling
and manufacturing nuclear weapons. But also nuclear
tests in our territory, as well as the use of our territory as
dumping ground for radioactive wastes.” Moreover, the
ban suggests that, in our relations with other states,
there must be a mechanism for the verification of the
existence or non-existence of nuclear arms. This will
therefore affect the terms of any renewal the country
might agree to of existing military bases agreements with
the United States. The provision must be read as a
mandate to the Philippine government to insist the pursuit
of a policy on nuclear weapons is a controlling guideline if
there should be any new negotiation with the United
States on the subject of military bases.
xxx
The original formulation of the provision, cited
above, might suggest that the ban on nuclear arms is
absolute. But, as explained by Commissioner Azcuna,
that was never the intention:
In my sponsorship speech, I pointed out that this is
a policy, albeit a basic policy because it is stated in the
Declaration of Principles and State Policies in the
Constitution. Consequently, what we are seeking here is
primarily a statement of an orientation, a basic direction
in the Constitution, that as a matter of policy, we are
against nuclear weapons in our territory.
As
practiced by other states, that means prohibition not
only of possessing, controlling and manufacturing
nuclear weapons, but also of nuclear test in our
territory, as well as the use of our territory as a
dumping ground for radioactive wastes. This is
embraced in the policy against nuclear weapons in one’s
territory. As practiced both in Latin America, under the
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Treaty of Tlatelolco, as well as by the South Pacific
countries that endorsed the Treaty of Rarotonga,
passage of ships, whether nuclear-powered or nucleararms-bearing, is left to the determination of every state
on a case-to-case basis. It is not per se a violation of a
nuclear weapons free zone to allow a ship that is nuclearpowered or bearing nuclear weapons to pass or enter
one’s territory. However, it has to be done in the light of
policy.
There is a policy against the presence of
nuclear weapons and, therefore, the exceptions to
that policy would have to be strictly construed or
justified. What we are saying with the formulation now
is that it can be justified only on the basis or on the
crucible of the national interest. If it is consistent with
the national interest, then really there is the possibility of
deviating from the policy but the policy is there. The
basic direction is there. There can be deviation now and
then because we said that this is not a 100 percent rule;
this is not absolute. But deviations must be justified on
the basis and the crucible or test of national interest.
Azcuna, however, did not explicate what the
exception would be.
The exception first surfaced in the reformulation
which was worded thus:
“The Philippines shall,
consistent with consideration solely of national interest,
pursue a policy of freedom from nuclear weapons in its
territory.” Explaining this reformulation, Commissioner
Monsod said that whether or not to allow nuclear
weapons would be decided on the basis of what is best
for the “national interest” as this might be defined by
the executive and legislative departments. Later the word
“solely” was dropped in order not to suggest that the
nation’s commitment to a policy against nuclear arms was
dictated solely by national interest; the opposition could
also be based, for example, on the desire for peace in the
region.”
But that was not to be the end of the discussion.
Concerned about media reports which tended to read the
provision as a total and absolute ban on nuclear arms,
Commissioner Monsod wanted to be doubly sure of what
the meaning was of the phrase “consistent with the
national interest” and so he wanted it rephrased to read
“subject to the national interest.” Thus, he elicited from
Commissioner Azcuna the explanation that “consistent
with” means “subject to,” that is, “that both adoption and
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G.R. NO. 212444
the pursuit of the policy, as well as any exception
therefrom, must be subject to the national interest. Still
uneasy about the possibility of misinterpretation,
Commissioner Monsod asked for the approval of a
clarificatory resolution.
Co-authored by several
Commissioners, the resolution read:
Resolved that since it is the intent and sense of the
Constitutional Commission that the phrase “consistent with
the national interest” in Section 7 [now Section 8] of the
Article on Declaration of Principles involving the policy on
nuclear weapons in Philippine territory also means “subject
to the national interest” as borne by the records of the
proceedings and the unanimous manifestation of the
Members of the Commission, the motion to reconsider and
amend such provision filed by 28 Commissioners is deemed
unnecessary and withdrawn from further consideration but is
hereby incorporated in the records of the Commission.
No one objected to the resolution and the problem
was deemed settled.142 (Emphasis supplied.)
394. Clearly, therefore, the ban on nuclear weapons includes those
carried in transit to our territory by US warships and warplanes,
which is implied in Article IV, par. 6 of EDCA. With this provision, as well as the lack of any mechanism therein for the verification of existence or non-existence of nuclear weapons,
EDCA tramples upon our Constitution.
395. Another EDCA provision which poses danger to our environment and, thus, our national interest is the following:
“1. United States forces shall not intentionally
release any hazardous materials or hazardous
waste owned by it, and, if a spill occurs, shall
expeditiously take action in order to contain and
address environmental contamination resulting from
the spill.” (Article IX, par. 3)
396.
Implied in said provision is the fact that US forces are allowed
to bring into the country hazardous materials or hazardous
waste, threatening the right of the Filipino people to a balanced
and healthful ecology and their right to health as declared in
Article II, Sections 16 and 15 of the 1987 Constitution.
142
The 1987 Constitution of the Philippines, A Commentary, supra, pp. 72-75.
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The EDCA in reality has no term
limit.
---------------------------------------------397. Before EDCA was finally released to the public, its proponents
and apologists declared that the agreement has an initial term
of ten (10) years. But they were silent on the date of its expiration. This devious concealment is revealed in Article XII, par. 4
which provides:
Article XII
ENTRY INTO FORCE, AMENDMENT, DURATION
AND TERMINATION
“4. This Agreement shall have an initial term of ten
years, and thereafter, it shall continue in force
automatically unless terminated by either Party by
giving one year’s written notice through diplomatic
channels of its intention to terminate this
Agreement.”
398.
Unlike the MBA which explicitly and without pretense provided
that it shall remain in force for 99 years (then amended to 25
years in 1966), EDCA, on the other hand, resorts to deception
by making it appear that its term is for 10 years only. Such chicanery is revealed by the mandatory clause “it shall continue
in force automatically,” which plainly means that the EDCA is
a perpetually continuing agreement and will only end if either of
the parties terminates it, not because of the expiration of its
term.
399.
As correctly observed by Justice Presbitero Velasco during the
oral arguments that “the term of the EDCA is practically unlimited because it is subject to automatic extension.”
JUSTICE VELASCO: In the MBA, what is the period of effectivity of the
MBA that already lapsed, right? But what was the stipulation there?
ACTING SOLICITOR GENERAL HILBAY: Originally, Your Honor, it was I
think 99 years, reduced to 25 years and then of course the . . . .
(interrupted)
JUSTICE VELASCO: What is the period or the term of the EDCA
agreement, the EDCA?
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G.R. NO. 212444
ACTING SOLICITOR GENERAL HILBAY: The EDCA, Your Honor, has
an initial term of 10 years.
JUSTICE VELASCO: Ten (10) years, and then what does the remainder
of the provisions state?
ACTING SOLICITOR GENERAL HILBAY: It says, “and thereafter, it shall
continue in force automatically unless terminated by either Party by giving
one year's written notice through diplomatic channels of its intention to
terminate this Agreement.
JUSTICE VELASCO: So, in short, in reality, there is no fixed term unless
one party terminates it, correct? It goes on and on. There's an automatic
renewal.
ACTING SOLICITOR GENERAL HILBAY: Your Honor. . . . (interrupted)
JUSTICE VE LASCO: Which is better between the two, the fixed term in
the MBA and this stipulation here?
ACTING SOLICITOR GENERAL HILBAY: semantically, Your Honor, it's
equivalent."
JUSTICE VELASCO: It is equivalent.
ACTING SOLICITOR GENERAL HILBAY: It is equivalent.
JUSTICE VELASCO: To your mind, ha?
ACTING SOLICITOR GENERAL HILBAY: Objectively, Your Honor, it is
equivalent. Why? Because I don't think anyone will forget the end of the
term of the EDCA especially the petitioners, no one will forget the 10 years
will lapse, Your Honor. And before those 10 years are through, someone,
the DFA, the DND, will consider whether or not they still want to continue
with the EDCA. If they don't want to continue with the EDCA, what do they
do? They will file a notice of termination.
JUSTICE VELASCO: Alright.
ACTING SOLICITOR GENERAL HILBAY: If they want to continue, all
they have to do is nothing.
JUSTICE VELASCO: Okay. So, if you have an administration who is very
generous and accommodating, this EDCA will be automatically renewed
because that administration will not terminate the agreement, correct? So,
it's open-ended in the sense that there is an automatic renewal clause,
okay?143
400.
143
Moreover, there is no mandatory requirement for review of the
EDCA within a certain period before the end of the initial 10year term, nor does it require renegotiation for its continuance.
TSN of Oral Arguments, November 25, 2014, pp. 112-114
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G.R. NO. 212444
401.
It should also be stressed that under Article X, paragraphs 1
and 2, and Article XX, paragraph 1 of EDCA, the terms of the
Agreement may be modified or amended by written agreement
of the parties in the form of annexes or implementing arrangements. Thus, the kind and nature of the activities that may be
conducted in the Agreed Locations may be increased and
broadened. The new arrangements may no longer pass the
scrutiny of the Congress and the Filipino People. To allow this
process is to countenance a circumvention of our Constitution.
402. It appears that the parties to the EDCA actually intended it to be
incomplete to allow them to amend or revise the same by mere
implementing arrangements in circumvention of the requirements of our Constitution.
403. The respondents, through the Acting solicitor General, admitted
upon queries by Justice Velasco that:
JUSTICE VELASCO: Mr. Acting Solicitor General, I am sure you have
crafted a contract or an agreement before.
ACTING SOLICITOR GENERAL HILBAY: Yes.
JUSTICE VELASCO: Right?
ACTING SOLICITOR GENERAL HILBAY: Yes.
JUSTICE VELASCO: And don't you think that an agreement should be
clear without equivocation and complete in all the aspects pertaining to the
agreement? Don't you think that should be…(interrupted) I
ACTING SOLICITOR GENERAL HILBAY: I personaliy believe, Your
Honor, that this agreement is rather clear.
JUSTICE VELASCO: It is clear, okay.
ACTING SOLICITOR GENERAL HILBAY: It is very clear, in fact.
JUSTICE VELASCO: Alright, I direct you to letter (b), Paragraph 1 of
Article I and letter (b) of one says, “Authorizing access to Agreed
Locations in the territory of the Philippines by United States forces on a
rotational basis, as mutually determined by the Parties.” Mutually
determined, is there already an agreement as to how the rotational
arrangement will be implemented?
ACTING SOLICITOR GENERAL HILBAY: Again, Your Honor, when we
say as “mutually determined by the Parties,” what it means is that, if the
MDB and the SEB agrees. This is again, Your Honor, an example of the
consent mechanism that we are referring to. So, when you say, when we
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G.R. NO. 212444
say “authorizing access to Agreed Locations on a rotational basis as
mutually determined by the Parties,” what it means is not that the parties
have already mutually determined that access will be granted on a
rotational basis. What it means is that access will be granted on a
rotational basis if the parties mutually agree. And this is consistent with the
Preamble. This is consistent with everything that you read in the EDCA.
JUSTICE VELASCO: So, in short, there is still no agreement as to the
rotational arrangement…(interrupted)
ACTING SOLICITOR GENERAL HILBAY: The EDCA. . . . (interrupted)
JUSTICE VELASCO: For access to the Agreed Locations, correct?
ACTING SOLICITOR GENERAL HILBAY: Correct, Your Honor. The
EDCA, Your Honor, is a framework agreement for agreeing to specific
activities whatever those activities may be.144
404.
The non-disclosure of the contents of the so-called Annexes,
implementing arrangements, and the new arrangements
between the US and Philippine representatives likewise violates
Article II, Section 28 of the Constitution on full disclosure of
matters regarding public interest, to wit:
Section 28. 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.
405.
More importantly, Article I, paragraph 2 of EDCA states that
“this Agreement provides the principal provisions and necessary authorizations with respect to Agreed Locations.” This
provision is a blanket authorization on all matters relating to the
Agreed Locations even if the parties are yet to discuss the
same. The blanket authorization may also cover the “implementing arrangements” and the amendments to the terms of
the Agreement that the parties may enter into in the future.
Such blanket authorization is not valid for being contrary to public policy and public interest.
The underlying purposes of
EDCA reveal that it is not for the
interest of the Filipino people.
----------------------------------------------
144
Ibid., pp. 111-112.
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G.R. NO. 212444
406.
The real motive behind EDCA is revealed in the United States
Department of Defense’s document entitled “Sustaining US
Global Leadership: Priorities for 21st Century Defense” dated
January 2012, which states in part:
“U.S. economic and security interests are
inextricably linked to developments in the arc
extending from the Western Pacific and East Asia
into the Indian Ocean region and South Asia,
creating a mix of evolving challenges and
opportunities. Accordingly, while the U.S. military
will continue to contribute to security globally, we
will of necessity rebalance toward the AsiaPacific region”.
407.
Indeed, EDCA does not serve and promote our national interest. Rather, it was hatched to protect US economic and security interests and maintain US global power projection and
military superiority at a lower cost, thus:
“Whenever possible, we will develop innovative,
low-cost, and small-footprint approaches to
achieve our security objectives, relying on
exercises, rotational presence, and advisory
capabilities.”
408. Parenthetically, the US is mandated by its Budget Control Act of
2011 to reduce its federal spending which includes expenses
for defense.
409.
Thus, the rent-free and taxes/fees-free provisions in favor of US
forces and US contractors under the EDCA are meant to carry
out US budget cut requirements at the expense of the Filipino
people, not only to serve its geopolitical interests in the “region”,
as disclosed by respondent Ambassador Malaya 145.
410. Clearly, the EDCA is only necessary insofar as securing US
economic and military interests in the region is concerned. It is
not necessary for the defense of Philippine sovereignty nor the
upholding of our national interest. It is erroneous to state that
the US and PH share a common interest. One is a superpower
and one is third world nation. Their interests are vastly different.
145
Ibid., p. 123.
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G.R. NO. 212444
411. The EDCA will not defend the Philippines against an armed attack by China. Nowhere in the agreement does it say so.
Obama himself did not say so during his April 28 visit to Manila
this year. Even EDCA’s supposed mother agreement the MDT
offers no assurance of automatic US retaliation against China.
412. During a hearing of the Senate Foreign Relations Committee on
December 1, 2014, Defense Secretary Voltaire Gazmin admitted that the EDCA and the MDT did not guarantee automatic
US involvement in an armed conflict between the Philippines
and China.
413. Moreover, the largest foreign holder of U.S. debt is China,
which owns more about $1.2 trillion in bills, notes and bonds,
according to the US Department of Treasury. In total, China
owns about 8 percent of publicly held U.S. debt. Of all the holders of U.S. debt China is the third-largest. Such a scenario
would make it very unlikely for the US to go to war against
China.
414. Proponents of EDCA also argue that the US will fill in the gaps
in the AFP’s modernization program. Petitioners believe that
EDCA will not lead to AFP modernization. Nowhere in the
EDCA does it state how the AFP will modernize through the
conduct of war games, the rotational deployment of US troops,
the storage or prepositioning of weapons and other forms of interaction with US troops.
415.
The agreement does not say how the AFP will acquire X
amount of weapons, ammunition, vehicles, vessels and technology in exchange for the use of our facilities. In fact, all relocatable or movable items owned by the US forces will be brought
back to the US, leaving us with only empty buildings. They can
bring home literally everything including the kitchen sink.
416.
Prepositioned materiel which includes weapons and other
equipment shall be for the exclusive use of US forces and can
be moved out of the country anytime. Finally, if indeed US military presence will lead to modernization, we should be a superpower by now after 44 years of US military bases and 15 years
of the VFA.
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G.R. NO. 212444
417. The Aquino government also argues that the EDCA will help in
Humanitarian Assistance and Disaster Response, citing the benefits of US engagement during Yolanda. There were many
countries who provided assistance during Yolanda. It is only
the US that is seeking a military agreement in exchange for socalled humanitarian assistance. There are other viable forms of
humanitarian assistance and disaster response that does not
require the basing of foreign troops and violation of our sovereignty.
THE EDCA DEPRIVES THE SUPREME COURT
OF ITS JUDICIAL POWER PROVIDED UNDER
ARTICLE VIII, SECTION 1 OF THE CONSTITUTION.
V.
418.
Judicial Power is vested upon the Supreme Court as provided
in Article VIII, Section 1 of the Constitution –
“Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable, and
to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government.”
419.
On the other hand, Article XI of EDCA provides a procedure for
the resolution of all disputes which may arise out of the agreement. The said procedure explicitly prohibits the referral of disputes and other matters “subject to consultation” under the
agreement to Philippine courts or international tribunals. The
emasculation of Philippine courts is manifestly evident in
this provision of the EDCA, to wit:
Article XI. 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
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G.R. NO. 212444
international court, tribunal, or other similar body, or
to any third party for settlement, unless otherwise
agreed by the Parties.
420.
The word "dispute" covers civil, criminal and administrative issues that may arise in the implementation of EDCA. This
means that Philippine courts have no jurisdiction over civil,
criminal and administrative cases even if the acts giving rise to
these were committed within Philippine territory, against Filipino
persons, and violates the Philippine Constitution and other domestic laws of the country.
421.
The Philippine Constitution is clear that judicial power is vested
in the Supreme Court and such other lower courts as may be
established by law.146 The same constitution lists down original
and appellate jurisdiction of the Supreme Court, 147 as well as its
power to promulgate the rules of procedure and practice (Sec.
5 (5), Art. VIII).148
422.
Article XI of EDCA, however, gives the US forces, as well
as its private contractors, immunity from Philippine law.
Disputes arising from the implementation of the EDCA are resolved only through "consultation" and not referred to any national or international tribunal, or other similar body, or to any
third party for settlement, unless the Parties otherwise agree.
This only means that American criminals and violators of
Philippine laws will go scot-free because of the absence of
imposition of a penalty and no court or third party to check
or review the legality or justness of the result of "consultations".US soldiers, mercenaries and contractors can commit crimes and violate Philippine laws with impunity.
423. The Philippine experience with the so-called Subic rape case
under the VFA is a despicable and shameful reminder of what
can transpire again through the EDCA.
424. Despite the fact that the Regional Trial Court of Makati found
L/Cpl. Daniel Smith guilty in 2006 of raping a Filipina, he was
later on secretly taken out of Philippine jail and transferred to a
detention facility under the control of the United States government.
146
147
148
Section 1, Article VIII of the 1987 Philippine Constitution.
Section 5 (1-2), Article VIII of the 1987 Philippine Constitution.
Section 5 (5), Article VIII of the 1987 Philippine Constitution.
137
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G.R. NO. 212444
425. In that case, the VFA provisions controlled the issue of jurisdiction over the person of a convicted US personnel. Under the
VFA,
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. 149xxx
426. The issue of detention was also the subject of “consultations”
between the US and the Philippines. To implement the VFA provision on detention, agreements between the states were
reached, as embodied in the Romulo-Kenney Agreements of 19
December 2006 and 22 December 2006, wherein Smith was
returned to the custody of the US at the American Embassy in
Manila.
427.
The VFA contains more specific provision on the Philippine
courts' jurisdiction over crimes committed within the territory.
Nevertheless, complete relief, from the moral perspective and
dignity of the ordinary Filipino, was never achieved. This scale
of injustice is multiplied many times over with the sweeping removal of the judiciary’s power and jurisdiction over
illegal acts committed in the implementation of the EDCA.
The EDCA deprives the Supreme Court of
judicial power over the acts of US forces,
personnel and contractors committed
within the Philippines resulting to any civil,
criminal or administrative liability.
-------------------------------------------------------------
i.
428. There is no assurance in EDCA that the US forces, personnel
and contractors may be held liable for violations of the Filipinos’
Bill of Rights. On the contrary, EDCA expressly exempts US
forces, contractors and “others” from the jurisdiction of the
country’s judicial system in case of any dispute.
429. In the event of any legal controversies between US personnel,
American contractors and the common Filipino citizens, Philippine courts have no adjudicative power over the dispute. This is
a clear abrogation of the State’s judicial authority within its territory.
149
Article V, Paragraph 10 of the Visiting Forces Agreement.
138
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
430.
The EDCA expressly provides that in soliciting, awarding and
administering contracts for the materiel, equipment, supplies
and services that may be undertaken in Philippine territory, the
same shall be done in accordance with the laws and regulations of the US. 150
431.
Also, “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,” the Parties in the
EDCA “share an intent that United States contractors may
carry out such matters in accordance with, and to the extent permissible under, United states laws, regulations and
policies.” 151
432. The EDCA explicitly exempts US forces, contractors and “others” from the jurisdiction of the Philippine judicial system, to reiterate, Article XI of EDCA reads thus –
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.
433.
Respondents argue that Article XI of the EDCA relates only to
disputes between the parties to the agreement, namely, the
United States and the Republic of the Philippines.
434.
However, Respondents’ argument is belied by the very text of
Article XI. As observed by Justice De Castro during the Oral Arguments last November 25, 2014, the language of Article XI is
very broad and does not limit the type of dispute to those
arising between the two countries.
JUSTICE DE CASTRO: Now, what about this provision that any
dispute will not be filed, will not be under the jurisdiction of
150
151
EDCA, Art. VII (1)
EDCA, Art IV (4), (5)
139
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Philippine courts but will be subject to diplomatic discussions
between the two countries?
ACTING SOLICITOR GENERAL HILBAY: Yes, Your Honor. That
makes a lot of sense because this is a government-to-government
agreement. In fact, it would be a bit strange if a government would
totally submit to the jurisdiction of another government insofar as
disputes involving military materials or activities are concerned.
JUSTICE DE CASTRO: But the language is very broad, any
dispute arising under this agreement. It does not say any
dispute between the two countries…xxx …It says any dispute.
So, what about labor dispute? What about a dispute between a US
contractor and a Filipino supplier? Considering the very broad
language of this provision, it may be difficult to just limit this to a
dispute between the two government. It doesn't say it's a dispute
between the US and the Philippines.
ACTING SOLICITOR GENERAL HILBAY: It does, Your Honor. It
says, “The Parties agree to resolve any dispute arising under this
Agreement exclusively through consultation between the Parties.”
The parties here, Your Honor, are the Republic of the Philippines
and the United States. And so, only disputes between the parties
will be subjected to Article XI mechanism. All other disputes can be
subjected to the regular court system.
JUSTICE DE CASTRO: But that is not the import of the
language of that provision. The consultations between the two
countries does not limit the type of dispute. Consultation is a
remedy.
ACTING SOLICITOR GENERAL HILBAY: Yes, Your Honor.
JUSTICE DE CASTRO: That is a remedy. It does not describe the
parties to the dispute so this provision is very broad to cover
any dispute. It may be a labor dispute, a dispute between an
employee (interrupted)…
xxx
ACTING SOLICITOR GENERAL HILBAY: Again Your Honor,
these are disputes between the Government of the Republic of the
Philippines and the United States.
xxx
JUSTICE DE CASTRO: You may be hard put to circumscribe
this provision considering the language of the provision…152
435. Clearly, the very text of EDCA does not support the respondents’ contention that the “dispute” being referred to in Article XI
refers only to disputes between the Philippines and the United
States.
152
TSN, November 25, 2014, pp. 80-82
140
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
436.
In addition, the respondents’ argument is illogical given the
doctrine of foreign sovereign immunity. Under this doctrine,
a foreign state is immune from the jurisdiction of the courts of
another sovereign state153.
437. If the “dispute” refers only to disputes between the Philippines
and the United States as claimed by the respondents, why
would there still be a need for an article that basically provides
that the United States cannot be subject to the jurisdiction of
Philippine courts and vice versa?
438.
Even without Article XI of EDCA, the United States is already
immune from the jurisdiction of local courts under the doctrine
of foreign sovereign immunity. Thus, under the respondents’
theory, Article XI would just be a surplusage. The Acting Solicitor General acknowledged as much when he said “it would be a
bit strange if a government would totally submit to the jurisdiction of another government insofar as disputes involving military
materials or activities are concerned.”
439. If the United States is already immune from the jurisdiction of
local courts in case of disputes, the only inescapable conclusion is that Article XI does not only refer to disputes between
the Philippines and the United States.
440. Justice De Castro’s statement that “disputes” referred to in Article XI include labor disputes as well as disputes between a US
contractor and a Filipino supplier is consistent with the position
of Petitioners.
A Primer on Foreign Sovereign Immunity by Tom McNamara Presented to Union
Internationale des Avocats, Winter Seminar on International Civil Litigation and the
United States of America, February/March 2006
153
141
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
441.
As stated in the Petition, the many possible disputes that may
arise under the EDCA include: criminal acts of operatives of
US forces or US contractors, contract or labor dispute, destruction of the environment as a result of US activities, or
spillage of toxic chemicals. But the US can easily get away
with these cases as Article XI of EDCA takes away the jurisdiction of local courts over these issues. US authorities can even
insist that the EDCA has ousted the International Criminal Court
of jurisdiction over acts committed in the deployment of troops
and materiel abroad or in the Philippines.
442.
Furthermore, the Petitioners’ position that Article XI of EDCA
places criminal acts committed by US forces outside of the jurisdiction of Philippine Courts is consistent with the actions taken
by the United States concerning its military personnel outside
their country. Under the Military Extraterritorial Jurisdiction Act
(MEJA) enacted by the US in the year 2000, criminal offenses
committed by certain members of the Armed Forces and by persons employed by or accompanying the Armed Forces outside
the United States are now within the “special” jurisdiction of the
US:
§ 3261 (a) Whoever engages in conduct outside the
United States that would constitute an offense
punishable by imprisonment for more than 1 year if
the conduct had been engaged in within the special
maritime and territorial jurisdiction of the United
States—
(1) while employed by or accompanying the Armed
Forces outside the United States; or
(2) while a member of the Armed Forces subject to
chapter 47 of title 10 (the Uniform Code of Military
Justice), shall be punished as provided for that
offense.
§ 3261 (a) Whoever engages in conduct outside the
United States that would constitute an offense
punishable by imprisonment for more than 1 year if
the conduct had been engaged in within the special
maritime and territorial jurisdiction of the United
States—
142
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
(1) while employed by or accompanying the
Armed Forces outside the United States; or
(2) while a member of the Armed Forces subject
to chapter 47 of title 10 (the Uniform Code of
Military Justice), shall be punished as provided
for that offense.
443. MEJA was intended to provide extraterritorial jurisdiction for circumstances where an American, who is overseas taking part in
U.S. military activity or operation, commits an offense: (1) in a
host country that is not exercising jurisdiction and (2) the offense would be a U.S. federal offense but cannot be reached by
any other extraterritorial statute or the Uniform Code of Military
Justice.
444.
Considering the text of the agreement, logical reasoning and
prior conduct of the United States, it is clear that the EDCA
ousts the Philippine justice system from any jurisdiction over
criminal offenses, contractual obligations and many other
issues which may arise in the course of its implementation.
445.
In granting US forces and their contractors immunity from prosecution or liability, EDCA clearly deprives the courts of its
judicial power.
446.
The implementation of EDCA blatantly violates the country’s
Sovereignty. This surrender by respondents of Philippine Sovereignty to the US through the EDCA constitutes manifest and
patent grave abuse of discretion which should not be countenanced
Reiteration of Application for Temporary Restraining Order
and/or Writ of Preliminary Injunction
315. Petitioners replead the foregoing allegations and reiterate their
prayer for the issuance of a temporary restraining order and a
writ of preliminary injunction – to enjoin all the respondents from
implementing and enforcing the EDCA and to restrain them
from continuing the negotiations on the “Agreed Locations” and
any and all acts relative thereto.
316. EDCA is unconstitutional and downright invalid because it
violates the national sovereignty, territorial integrity and national
143
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
interest provision of the Constitution, other provisions of the
Philippine Constitution and various Philippine laws and
principles of international law.
317. As admitted by the respondents, the EDCA is now in force
following its ratification by the President.
318. Certainly, an Agreement like EDCA that derogates the
Constitution and various laws and international law principles
should not be countenanced. To deny petitioners the injunctive
writ would allow continuous violation of their fundamental rights
and the fundamental rights of the Filipino people that would
definitely cause grave and irreparable injury.
PRAYER
WHEREFORE, petitioners respectfully pray that after due
consideration of the present petition, the Honorable Court declare the
Enhanced Defense Cooperation Agreement (EDCA) entered into by
the respondents for the Philippine government, with the United States
of America, UNCONSTITUTIONAL AND INVALID and to permanently
enjoin its implementation.
The petitioners also pray that upon the Honorable Court issue a
Temporary Restraining Order (TRO) or injunction ordering the
respondents to cease and desist from implementing EDCA and from
performing any and all acts relative thereto.
Other forms of relief just and equitable under the premises are
likewise prayed for.
Makati City for Manila City. December 15, 2014 .
PUBLIC INTEREST LAW CENTER
Counsel for Petitioners
4/F Kaija Bldg. 7836 Makati Ave.
corner Valdez St., Makati City
144
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Tel. No. (632) 899-3439; Telfax No. (632) 899-3416
Email address: publicinterestlawcenter@gmail.com
By:
RACHEL F. PASTORES
IBP No. 951803; 01/06/14; Makati
PTR No. 4234173; 01/08/14; Makati
Roll No. 39818
MCLE Compliance
Number IV-0019444; 04-30-13
AMYLYN B. SATO
IBP No. 951804; 01/06/14; Q.C.
PTR No. 9079643; 01/07/14; Q.C.
Roll No. 50389
MCLE Compliance
Number IV-0019952; 05-06-13
FRANCIS ANTHONY P. PRINCIPE
IBP No. 951805; 01/06/14; Q.C.
PTR No. 9079644; 01/07/14; Q.C.
Roll No. 50915
MCLE Compliance
Number V – 0001654; 02-05-14
SANDRA JILL S. SANTOS
IBP NO. 951806; 01/06/14; RSM
PTR NO. 2167533; 01/09/14;Mand.
Roll No. 59809
MCLE Compliance
Number IV – 0020709; 06-13-13
CARLOS MONTEMAYOR, JR.
IBP No. 951807; 01/06/14; Q.C
PTR No. 9079645; 01/07/14; Q.C.
Roll No. 61085
MCLE Compliance Number IV – 0017620; 04-22-13
NATIONAL UNION OF PEOPLES' LAWYERS
3/F Erythrina Building
No. 1 Matatag corner Maaralin Streets
Central District, Quezon City
Telefax No. (632) 920-6660
Email address: nupl2007@gmail.com
By:
MARIA KRISTINA C. CONTI
IBP Lifetime Member No. 012641
PTR No. 9786846; 5/13/14; QC
145
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Roll No. 63574
Admitted to the Bar, 2014
MCLE not yet required
And
MARIA CRISTINA P. YAMBOT
Bayan Muna Headquarters
No. 45 K-7th St., Brgy. West Kamias, Quezon City
Tel. No. (632) 921-3473
Email: cris.yambot@gmail.com
IBP No. 961187; 02/04/14; Rizal
PTR No. 1273804; 01/06/14; Rizal
Roll No. 59700
MCLE Compliance Number IV – 0016616; 04-11-13
MANEEKA ASISTOL SARZA
Alliance of Concerned Teachers National Headquarters
Second floor, Teachers’ Building, Mines cor. Dipolog Sts.,
Brgy. Vasra, Quezon City
Tel. No. (0947) 893-5116
IBP Lifetime Member No. 011274
PTR No. 7621794; 03/17/14; QC
MCLE Compliance Number IV-0023102; 02/26/14
EPHRAIM B. CORTEZ
IBP No. 961188 - 2/4/2014 - Isabela
PTR No. 9254662B - 1/24/2014- Quezon City
Roll of Attorneys No. 41366
MCLE Compliance No. IV-0018068 - 04/25/2013
Copy Furnished:
146
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
OFFICE OF THE SOLICITOR GENERAL
Thru ACTING SOLICITOR GENERAL FLORIN T. HILBAY
134 Amorsolo St., Legaspi Village
1229 Makati City
ATTYS. HARRY L. ROQUE, GILBERT TERUEL ANDRES,
ROMEL R. BAGARES & ETHEL C. AVISADO
ROQUE and BUTUYAN LAW OFFICES
Counsel for Petitioners in G.R. No. 212246
1904 Antel Corporate Center
121 Valero Street, Salcedo Village, Makati City
ATTYS. REMEGIO D. SALADERO JR., NOEL V. NERI
And VICENTE JAIME M. TOPACIO
Pro-Labor Legal Assistance Center
Counsel for the Petitioners-In-Intervention
No. 33 B E. Rodriguez Sr. Avenue, Quezon City
ATTY. RENE A. Q. SAGUISAG,JR.
4045 Bigasan Street, Palanan, Makati City
EXPLANATION ON SERVICE BY REGISTERED MAIL
Pursuant to the Section 11, Rule 13 of the Rules of Court, the office
of the undersigned served copies of this Memorandum on the other
parties through registered mail due to time, distance and manpower
constraints.
CARLOS MONTEMAYOR, JR.