[G.R. No. 138570.

October 10, 2000]

BAYAN (Bagong Alyansang Makabayan), a
JUNK VFA MOVEMENT, BISHOP TOMAS
MILLAMENA (Iglesia Filipina Independiente),
BISHOP ELMER BOLOCAN (United Church
of Christ of the Phil.), DR. REYNALDO
LEGASCA, MD, KILUSANG MAMBUBUKID
NG PILIPINAS, KILUSANG MAYO UNO,
GABRIELA, PROLABOR, and the PUBLIC
INTEREST
LAW
CENTER, petitioners,
vs. EXECUTIVE SECRETARY RONALDO
ZAMORA, FOREIGN AFFAIRS SECRETARY
DOMINGO SIAZON, DEFENSE SECRETARY
ORLANDO
MERCADO,
BRIG.
GEN.
ALEXANDER
AGUIRRE,
SENATE
PRESIDENT MARCELO FERNAN, SENATOR
FRANKLIN DRILON, SENATOR BLAS OPLE,
SENATOR
RODOLFO
BIAZON,
and
SENATOR
FRANCISCO
TATAD,
respondents.

[G.R. No. 138572. October 10,

2000]
PHILIPPINE CONSTITUTION ASSOCIATION,
INC.(PHILCONSA), EXEQUIEL B. GARCIA,
AMADOGAT INCIONG, CAMILO L. SABIO,
AND RAMON A. GONZALES, petitioners,
vs. HON. RONALDO B. ZAMORA, as
Executive Secretary, HON. ORLANDO
MERCADO, as Secretary of National
Defense, and HON. DOMINGO L. SIAZON,
JR.,
as
Secretary
of
Foreign
Affairs, respondents.

[G.R. No. 138587. October 10,

2000]
TEOFISTO T. GUINGONA, JR., RAUL S.
ROCO,
and
SERGIO
R.
OSMEA
III, petitioners, vs. JOSEPH E. ESTRADA,
RONALDO B. ZAMORA, DOMINGO L.
SIAZON, JR., ORLANDO B. MERCADO,
MARCELO B. FERNAN, FRANKLIN M.
DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.

[G.R. No. 138680. October 10,

2000]
INTEGRATED BAR OF THE PHILIPPINES,
Represented by its National President, Jose
CONSTITUTIONAL LAW 1

Aguila Grapilon, petitioners, vs. JOSEPH

EJERCITO ESTRADA, in his capacity as
President, Republic of the Philippines, and
HON. DOMINGO SIAZON, in his capacity as
Secretary of Foreign Affairs,respondents.

[G.R. No. 138698. October 10,

2000]
JOVITO R. SALONGA, WIGBERTO TAADA,
ZENAIDA QUEZON-AVENCEA, ROLANDO
SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A.
AQUINO, JOKER P. ARROYO, FRANCISCO
C. RIVERA JR., RENE A.V. SAGUISAG,
KILOSBAYAN, MOVEMENT OF ATTORNEYS
FOR BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. (MABINI), petitioners,
vs. THE EXECUTIVE SECRETARY, THE
SECRETARY OF FOREIGN AFFAIRS, THE
SECRETARY OF NATIONAL DEFENSE,
SENATE
PRESIDENT
MARCELO
B.
FERNAN, SENATOR BLAS F. OPLE,
SENATOR RODOLFO G. BIAZON, AND ALL
OTHER
PERSONS
ACTING
THEIR
CONTROL, SUPERVISION, DIRECTION,
AND INSTRUCTION IN RELATION TO THE
VISITING
FORCES
AGREEMENT
(VFA), respondents.

DECISION
BUENA, J.:

Confronting the Court for resolution in the

instant consolidated petitions for certiorari and
prohibition are issues relating to, and borne by,
an agreement forged in the turn of the last
century between the Republic of the Philippines
and the United States of America -the Visiting
Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the
United States of America forged a Military
Bases Agreement which formalized, among
others, the use of installations in the Philippine
territory by United States military personnel. To
further strengthen their defense and security
relationship, the Philippines and the United
States entered into a Mutual Defense Treaty on
August 30, 1951. Under the treaty, the parties

agreed to respond to any external armed attack

on their territory, armed forces, public vessels,
and aircraft.[1]
In view of the impending expiration of the
RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for
a possible extension of the military bases
agreement. On September 16, 1991, the
Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security
which, in effect, would have extended the
presence of US military bases in the
Philippines.[2] With the expiration of the RP-US
Military Bases Agreement, the periodic military
exercises conducted between the two countries
were held in abeyance. Notwithstanding, the
defense and security relationship between the
Philippines and the United States of America
continued pursuant to the Mutual Defense
Treaty.
On July 18, 1997, the United States panel,
headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met
with the Philippine panel, headed by Foreign
Affairs Undersecretary Rodolfo Severino Jr., to
exchange notes on the complementing strategic
interests of the United States and the
Philippines in the Asia-Pacific region. Both sides
discussed, among other things, the possible
elements of the Visiting Forces Agreement (VFA
for brevity). Negotiations by both panels on the
VFA led to a consolidated draft text, which in
turn resulted to a final series of conferences and
negotiations[3] that culminated in Manila on
January 12 and 13, 1998. Thereafter, then
President Fidel V. Ramos approved the VFA,
which was respectively signed by public
respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10,
1998.
On October 5, 1998, President Joseph E.
Estrada, through respondent Secretary of
Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting
through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the
Senate of the Philippines,[5] the Instrument of
Ratification, the letter of the President [6] and the
VFA, for concurrence pursuant to Section 21,
CONSTITUTIONAL LAW 1

Article VII of the 1987 Constitution. The Senate,

in turn, referred the VFA to its Committee on
Foreign Relations, chaired by Senator Blas F.
Ople, and its Committee on National Defense
and Security, chaired by Senator Rodolfo G.
Biazon, for their joint consideration and
recommendation. Thereafter,
joint
public
hearings were held by the two Committees. [7]
On May 3, 1999, the Committees submitted
Proposed
Senate
Resolution
No.
[8]
443 recommending the concurrence of the
Senate to the VFA and the creation of a
Legislative Oversight Committee to oversee its
implementation. Debates then ensued.
On May 27, 1999, Proposed Senate
Resolution No. 443 was approved by the
Senate, by a two-thirds (2/3) vote [9] of its
members. Senate Resolution No. 443 was then
re-numbered as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered
into force after an Exchange of Notes between
respondent Secretary Siazon and United States
Ambassador Hubbard.
The VFA, which consists of a Preamble and
nine (9) Articles, provides for the mechanism for
regulating the circumstances and conditions
under which US Armed Forces and defense
personnel may be present in the Philippines,
and is quoted in its full text, hereunder:

Article I
Definitions
As used in this Agreement, United States
personnel means United States military
and civilian personnel temporarily in the
Philippines in connection with activities
approved by the Philippine Government.
Within this definition:
1. The term military personnel refers to
military members of the United States
Army, Navy, Marine Corps, Air Force,
and Coast Guard.
2. The term civilian personnel refers to
individuals who are neither nationals of,
nor ordinary residents in the Philippines

and who are employed by the United

States armed forces or who are
accompanying the United States armed
forces, such as employees of the
American Red Cross and the United
Services Organization.

Article II
Respect for Law
It is the duty of the United States personnel
to respect the laws of the Republic of the
Philippines and to abstain from any
activity inconsistent with the spirit of this
agreement, and, in particular, from any
political activity in the Philippines. The
Government of the United States shall take
all measures within its authority to ensure
that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall
facilitate the admission of United States
personnel and their departure from the
Philippines in connection with activities
covered by this agreement.
2. United States military personnel shall be
exempt from passport and visa
regulations upon entering and departing
the Philippines.
3. The following documents only, which
shall be presented on demand, shall be
required in respect of United States
military personnel who enter the
Philippines:
(a) personal identity card issued by the
appropriate United States authority
showing full name, date of birth,
rank or grade and service number
(if any), branch of service and
photograph;
CONSTITUTIONAL LAW 1

(b) individual or collective document

issued by the appropriate United
States authority, authorizing the
travel or visit and identifying the
individual or group as United
States military personnel; and
(c) the commanding officer of a
military aircraft or vessel shall
present a declaration of health, and
when required by the cognizant
representative of the Government
of the Philippines, shall conduct a
quarantine inspection and will
certify that the aircraft or vessel is
free from quarantinable diseases.
Any quarantine inspection of
United States aircraft or United
States vessels or cargoes thereon
shall be conducted by the United
States commanding officer in
accordance with the international
health regulations as promulgated
by the World Health Organization,
and mutually agreed procedures.
4. United States civilian personnel shall be
exempt from visa requirements but
shall present, upon demand, valid
passports upon entry and departure of
the Philippines.
5. If the Government of the Philippines has
requested the removal of any United
States personnel from its territory, the
United States authorities shall be
responsible for receiving the person
concerned within its own territory or
otherwise disposing of said person
outside of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as
valid, without test or fee, a driving

permit or license issued by the

appropriate United States authority to
United States personnel for the
operation of military or official vehicles.
2. Vehicles owned by the Government of
the United States need not be registered,
but shall have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have
jurisdiction over United States
personnel with respect to offenses
committed within the Philippines and
punishable under the law of the
Philippines.
(b) United States military authorities
shall have the right to exercise within
the Philippines all criminal and
disciplinary jurisdiction conferred on
them by the military law of the United
States over United States personnel
in the Philippines.
2.

(a) Philippine authorities exercise

exclusive jurisdiction over United
States personnel with respect to
offenses,
including
offenses
relating to the security of the
Philippines, punishable under the
laws of the Philippines, but not
under the laws of the United
States.
(b) United States authorities exercise
exclusive jurisdiction over United
States personnel with respect to
offenses,
including
offenses
relating to the security of the
United States, punishable under
the laws of the United States, but
not under the laws of the
Philippines.
(c) For the purposes of this
paragraph and paragraph 3 of
this article, an offense relating to
security means:

CONSTITUTIONAL LAW 1

(1) treason;
(2) sabotage, espionage or
violation of any law
relating to national
defense.
3. In cases where the right to exercise
jurisdiction is concurrent, the following
rules shall apply:
(a) Philippine authorities shall have the
primary right to exercise jurisdiction
over all offenses committed by United
States personnel, except in cases
provided for in paragraphs 1(b), 2 (b),
and 3 (b) of this Article.
(b) United States military authorities
shall have the primary right to
exercise jurisdiction over United
States personnel subject to the
military law of the United States in
relation to.
(1)

offenses solely against the

property or security of the United
States or offenses solely against
the property or person of United
States personnel; and

(2) offenses arising out of any act or

omission done in performance of
official duty.
(c) The authorities of either government
may request the authorities of the
other government to waive their
primary right to exercise jurisdiction in
a particular case.
(d) Recognizing the responsibility of the
United States military authorities to
maintain good order and discipline
among
their
forces,
Philippine
authorities will, upon request by the
United States, waive their primary
right to exercise jurisdiction except in
cases of particular importance to the
Philippines. If the Government of the
Philippines determines that the case
is of particular importance, it shall
communicate such determination to
the United States authorities within
twenty (20) days after the Philippine
authorities receive the United States
request.

(e) When the United States military

commander determines that an
offense charged by authorities of the
Philippines against United states
personnel arises out of an act or
omission done in the performance of
official duty, the commander will issue
a certificate setting forth such
determination. This certificate will be
transmitted
to
the
appropriate
authorities of the Philippines and will
constitute
sufficient
proof
of
performance of official duty for the
purposes of paragraph 3(b)(2) of this
Article. In those cases where the
Government of the Philippines
believes the circumstances of the
case require a review of the duty
certificate, United States military
authorities and Philippine authorities
shall consult immediately. Philippine
authorities at the highest levels may
also present any information bearing
on its validity. United States military
authorities shall take full account of
the Philippine position. Where
appropriate, United States military
authorities will take disciplinary or
other action against offenders in
official duty cases, and notify the
Government of the Philippines of the
actions taken.
(f) If the government having the primary
right does not exercise jurisdiction, it
shall notify the authorities of the other
government as soon as possible.
(g) The authorities of the Philippines and
the United States shall notify each
other of the disposition of all cases in
which both the authorities of the
Philippines and the United States
have the right to exercise jurisdiction.
4.

Within the scope of their legal

competence, the authorities of the
Philippines and United States shall
assist each other in the arrest of United
States personnel in the Philippines and
in handling them over to authorities who
are to exercise jurisdiction in accordance
with the provisions of this article.

5. United States military authorities shall

promptly notify Philippine authorities of
the arrest or detention of United States
CONSTITUTIONAL LAW 1

personnel who are subject of Philippine

primary
or
exclusive
jurisdiction.
Philippine authorities shall promptly
notify United States military authorities
of the arrest or detention of any United
States personnel.
6. The custody of any United States
personnel over whom the Philippines is
to exercise jurisdiction shall immediately
reside with United States military
authorities, if they so request, from the
commission of the offense until
completion of all judicial proceedings.
United States military authorities shall,
upon formal notification by the Philippine
authorities and without delay, make such
personnel available to those authorities
in time for any investigative or judicial
proceedings relating to the offense with
which the person has been charged in
extraordinary cases, the Philippine
Government shall present its position to
the United States Government regarding
custody, which the United States
Government shall take into full account.
In
the
event
Philippine
judicial
proceedings are not completed within
one year, the United States shall be
relieved of any obligations under this
paragraph. The one-year period will not
include the time necessary to appeal.
Also, the one-year period will not include
any time during which scheduled trial
procedures are delayed because United
States
authorities,
after
timely
notification by Philippine authorities to
arrange for the presence of the accused,
fail to do so.
7. Within the scope of their legal authority,
United States and Philippine authorities
shall assist each other in the carrying
out of all necessary investigation into
offenses and shall cooperate in
providing for the attendance of
witnesses and in the collection and
production of evidence, including seizure
and, in proper cases, the delivery of
objects connected with an offense.
8. When United States personnel have
been tried in accordance with the
provisions of this Article and have been
acquitted or have been convicted and
are serving, or have served their
sentence, or have had their sentence

remitted or suspended, or have been

pardoned, they may not be tried again
for the same offense in the Philippines.
Nothing in this paragraph, however, shall
prevent United States military authorities
from trying United States personnel for
any violation of rules of discipline arising
from the act or omission which
constituted an offense for which they
were tried by Philippine authorities.
9. When United States personnel are
detained, taken into custody, or
prosecuted by Philippine authorities,
they shall be accorded all procedural
safeguards established by the law of the
Philippines. At the minimum, United
States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of
the specific charge or charges made
against them and to have reasonable
time to prepare a defense;
(c) To be confronted with witnesses
against them and to cross examine
such witnesses;
(d) To present evidence in their defense
and to have compulsory process for
obtaining witnesses;
(e) To have free and assisted legal
representation of their own choice on
the same basis as nationals of the
Philippines;
(f) To have the service of a competent
interpreter; and
(g) To communicate promptly with and to
be visited regularly by United States
authorities, and to have such
authorities present at all judicial
proceedings. These proceedings shall
be public unless the court, in
accordance with Philippine laws,
excludes persons who have no role in
the proceedings.
10. The confinement or detention by
Philippine authorities of United States
personnel shall be carried out in facilities
agreed on by appropriate Philippine and
United States authorities. United States
Personnel serving sentences in the
CONSTITUTIONAL LAW 1

Philippines shall have the right to visits

and material assistance.
11. United States personnel shall be
subject to trial only in Philippine courts of
ordinary jurisdiction, and shall not be
subject to the jurisdiction of Philippine
military or religious courts.

Article VI
Claims
1. Except for contractual arrangements,
including United States foreign military
sales letters of offer and acceptance and
leases of military equipment, both
governments waive any and all claims
against each other for damage, loss or
destruction to property of each others
armed forces or for death or injury to
their military and civilian personnel
arising from activities to which this
agreement applies.
2. For claims against the United States,
other than contractual claims and those
to which paragraph 1 applies, the United
States Government, in accordance with
United States law regarding foreign
claims, will pay just and reasonable
compensation
in
settlement
of
meritorious claims for damage, loss,
personal injury or death, caused by acts
or omissions of United States personnel,
or otherwise incident to the non-combat
activities of the United States forces.

Article VII
Importation and Exportation
1. United States Government equipment,
materials, supplies, and other property
imported into or acquired in the
Philippines by or on behalf of the United
States armed forces in connection with
activities to which this agreement
applies, shall be free of all Philippine
duties, taxes and other similar charges.
Title to such property shall remain with
the United States, which may remove
such property from the Philippines at
any time, free from export duties, taxes,
and other similar charges. The
exemptions provided in this paragraph
shall also extend to any duty, tax, or

other similar charges which would

otherwise be assessed upon such
property after importation into, or
acquisition within, the Philippines. Such
property may be removed from the
Philippines, or disposed of therein,
provided that disposition of such
property in the Philippines to persons or
entities not entitled to exemption from
applicable taxes and duties shall be
subject to payment of such taxes, and
duties and prior approval of the
Philippine Government.
2.

Reasonable quantities of personal

baggage, personal effects, and other
property for the personal use of United
States personnel may be imported into
and used in the Philippines free of all
duties, taxes and other similar charges
during the period of their temporary stay
in the Philippines. Transfers to persons
or entities in the Philippines not entitled
to import privileges may only be made
upon prior approval of the appropriate
Philippine authorities including payment
by the recipient of applicable duties and
taxes imposed in accordance with the
laws of the Philippines. The exportation
of such property and of property
acquired in the Philippines by United
States personnel shall be free of all
Philippine duties, taxes, and other
similar charges.

Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United
States armed forces may enter the
Philippines upon approval of the
Government of the Philippines in
accordance with procedures stipulated
in implementing arrangements.
2. Vessels operated by or for the United
States armed forces may enter the
Philippines upon approval of the
Government of the Philippines. The
movement of vessels shall be in
accordance with international custom
and practice governing such vessels,
and
such
agreed
implementing
arrangements as necessary.
CONSTITUTIONAL LAW 1

3. Vehicles, vessels, and aircraft operated

by or for the United States armed forces
shall not be subject to the payment of
landing or port fees, navigation or over
flight charges, or tolls or other use
charges, including light and harbor dues,
while in the Philippines. Aircraft operated
by or for the United States armed forces
shall observe local air traffic control
regulations while in the Philippines.
Vessels owned or operated by the
United States solely on United States
Government non-commercial service
shall not be subject to compulsory
pilotage at Philippine ports.

Article IX
Duration and Termination
This agreement shall enter into force on
the date on which the parties have notified
each other in writing through the
diplomatic channel that they have
completed their constitutional
requirements for entry into force. This
agreement shall remain in force until the
expiration of 180 days from the date on
which either party gives the other party
notice in writing that it desires to terminate
the agreement.
Via these
consolidated[11] petitions
for
certiorari and prohibition, petitioners - as
legislators, non-governmental organizations,
citizens
and
taxpayers
assail
the
constitutionality of the VFA and impute to herein
respondents grave abuse of discretion in
ratifying the agreement.
We have simplified the issues raised by the
petitioners into the following:
I

Do petitioners have legal standing as

concerned citizens, taxpayers, or
legislators to question the constitutionality
of the VFA?
II

Is the VFA governed by the provisions of

Section 21, Article VII or of Section 25,
Article XVIII of the Constitution?
III

Does the VFA constitute an abdication of

Philippine sovereignty?
a. Are Philippine courts deprived of their
jurisdiction to hear and try offenses
committed by US military personnel?
b. Is the Supreme Court deprived of its
jurisdiction over offenses punishable by
reclusion perpetua or higher?
IV

Does the VFA violate:

a. the equal protection clause under
Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons
under Article II, Section 8?
c. Section 28 (4), Article VI of the
Constitution granting the exemption from
taxes and duties for the equipment,
materials supplies and other properties
imported into or acquired in the
Philippines by, or on behalf, of the US
Armed Forces?

LOCUS STANDI

At the outset, respondents challenge

petitioners standing to sue, on the ground that
the latter have not shown any interest in the
case, and that petitioners failed to substantiate
that they have sustained, or will sustain direct
injury as a result of the operation of the VFA.
[12]
Petitioners, on the other hand, counter that
the validity or invalidity of the VFA is a matter of
transcendental importance which justifies their
standing.[13]
A party bringing a suit challenging the
constitutionality of a law, act, or statute must
show not only that the law is invalid, but also
that he has sustained or in is in immediate, or
CONSTITUTIONAL LAW 1

imminent danger of sustaining some direct

injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite
way. He must show that he has been, or is
about to be, denied some right or privilege to
which he is lawfully entitled, or that he is about
to be subjected to some burdens or penalties by
reason of the statute complained of.[14]
In the case before us, petitioners failed to
show, to the satisfaction of this Court, that they
have sustained, or are in danger of sustaining
any direct injury as a result of the enforcement
of the VFA. As taxpayers, petitioners have not
established that the VFA involves the exercise
by Congress of its taxing or spending powers.
[15]
On this point, it bears stressing that a
taxpayers suit refers to a case where the act
complained of directly involves the illegal
disbursement of public funds derived from
taxation.[16] Thus,
in Bugnay
Const.
&
Development Corp. vs. Laron[17], we held:

x x x it is exigent that the taxpayer-plaintiff

sufficiently show that he would be benefited or
injured by the judgment or entitled to the avails
of the suit as a real party in interest. Before he
can invoke the power of judicial review, he
must specifically prove that he has sufficient
interest in preventing the illegal expenditure of
money raised by taxation and that he will
sustain a direct injury as a result of the
enforcement of the questioned statute or
contract. It is not sufficient that he has merely
a general interest common to all members of
the public.
Clearly, inasmuch as no public funds raised
by taxation are involved in this case, and in the
absence of any allegation by petitioners that
public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no
legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada,
Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the
requisite locus standi to maintain the present
suit. While this Court, in Phil. Constitution
Association vs. Hon. Salvador Enriquez,

sustained the legal standing of a member of

the Senate and the House of Representatives to
question the validity of a presidential veto or a
condition imposed on an item in an
appropriation bull, we cannot, at this instance,
similarly uphold petitioners standing as
members of Congress, in the absence of a clear
showing of any direct injury to their person or to
the institution to which they belong.
[18]

Beyond this, the allegations of impairment

of legislative power, such as the delegation of
the power of Congress to grant tax exemptions,
are more apparent than real. While it may be
true that petitioners pointed to provisions of the
VFA which allegedly impair their legislative
powers, petitioners failed however to sufficiently
show that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar
of the Philippines (IBP) is stripped of standing in
these cases. As aptly observed by the Solicitor
General, the IBP lacks the legal capacity to
bring this suit in the absence of a board
resolution from its Board of Governors
authorizing its National President to commence
the present action.[19]
Notwithstanding, in view of the paramount
importance and the constitutional significance of
the issues raised in the petitions, this Court, in
the exercise of its sound discretion, brushes
aside the procedural barrier and takes
cognizance of the petitions, as we have done in
the early Emergency Powers Cases,[20] where
we had occasion to rule:

x x x ordinary citizens and taxpayers were

allowed to question the constitutionality of
several executive orders issued by President
Quirino although they were involving only an
indirect and general interest shared in common
with the public. The Court dismissed the
objection that they were not proper parties and
ruled that transcendental importance to the
public of these cases demands that they be
settled promptly and definitely, brushing
aside, if we must, technicalities of
procedure. We have since then applied the
exception in many other cases. (Association of
CONSTITUTIONAL LAW 1

Small Landowners in the Philippines, Inc. v.

Sec. of Agrarian Reform, 175 SCRA 343).
(Underscoring Supplied)
This principle was reiterated in the
subsequent cases of Gonzales vs. COMELEC,
[21]
Daza vs. Singson,[22] and Basco vs. Phil.
Amusement and Gaming Corporation,
[23]
where we emphatically held:

Considering however the importance to the

public of the case at bar, and in keeping with
the Courts duty, under the 1987 Constitution,
to determine whether or not the other branches
of the government have kept themselves within
the limits of the Constitution and the laws and
that they have not abused the discretion given
to them, the Court has brushed aside
technicalities of procedure and has taken
cognizance of this petition. x x x
Again, in the more recent case
of Kilosbayan vs. Guingona, Jr.,[24] thisCourt
ruled that in cases of transcendental
importance, the Court may relax the standing
requirements and allow a suit to prosper
even where there is no direct injury to the
party claiming the right of judicial review.
Although courts generally avoid having to
decide a constitutional question based on the
doctrine of separation of powers, which enjoins
upon the departments of the government a
becoming respect for each others acts, [25] this
Court nevertheless resolves to take cognizance
of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy

is the determination of which provision of the
Constitution applies, with regard to the exercise
by the senate of its constitutional power to
concur with the VFA. Petitioners argue that
Section 25, Article XVIII is applicable
considering that the VFA has for its subject the
presence of foreign military troops in the
Philippines.Respondents, on the contrary,

maintain that Section 21, Article VII should

apply inasmuch as the VFA is not a basing
arrangement but an agreement which involves
merely the temporary visits of United States
personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains
two provisions requiring the concurrence of the
Senate
on
treaties
or
international
agreements. Section 21, Article VII, which
herein respondents invoke, reads:

No treaty or international agreement shall be

valid and effective unless concurred in by at
least two-thirds of all the Members of the
Senate.
Section 25, Article XVIII, provides:

After the expiration in 1991 of the Agreement

between the Republic of the Philippines and
the United States of America concerning
Military Bases, foreign military bases, troops,
or facilities shall not be allowed in the
Philippines except under a treaty duly
concurred in by the senate and, when the
Congress so requires, ratified by a majority of
the votes cast by the people in a national
referendum held for that purpose, and
recognized as a treaty by the other contracting
State.
Section 21, Article VII deals with treatise or
international agreements in general, in which
case, the concurrence of at least two-thirds
(2/3) of all the Members of the Senate is
required to make the subject treaty, or
international agreement, valid and binding on
the part of the Philippines. This provision lays
down the general rule on treatise or
international agreements and applies to any
form of treaty with a wide variety of subject
matter, such as, but not limited to, extradition or
tax treatise or those economic in nature. All
treaties or international agreements entered into
by the Philippines, regardless of subject matter,
coverage, or particular designation or
appellation, requires the concurrence of the
Senate to be valid and effective.
CONSTITUTIONAL LAW 1

In contrast, Section 25, Article XVIII is a

special provision that applies to treaties which
involve the presence of foreign military bases,
troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only
one of the requisites to render compliance with
the constitutional requirements and to consider
the
agreement
binding
on
the
Philippines.Section 25, Article XVIII further
requires that foreign military bases, troops, or
facilities may be allowed in the Philippines only
by virtue of a treaty duly concurred in by the
Senate, ratified by a majority of the votes cast in
a national referendum held for that purpose if so
required by Congress, and recognized as such
by the other contracting state.
It is our considered view that both
constitutional provisions, far from contradicting
each other, actually share some common
ground. These constitutional provisions both
embody phrases in the negative and thus, are
deemed
prohibitory
in
mandate
and
character. In particular, Section 21 opens with
the clause No treaty x x x, and Section 25
contains
the
phrase
shall
not
be
allowed. Additionally, in both instances, the
concurrence of the Senate is indispensable to
render the treaty or international agreement
valid and effective.
To our mind, the fact that the President
referred the VFA to the Senate under Section
21, Article VII, and that the Senate extended its
concurrence under the same provision, is
immaterial. For in either case, whether under
Section 21, Article VII or Section 25, Article
XVIII, the fundamental law is crystalline that the
concurrence of the Senate is mandatory to
comply
with
the
strict
constitutional
requirements.
On the whole, the VFA is an agreement
which defines the treatment of United States
troops and personnel visiting the Philippines. It
provides for the guidelines to govern such visits
of military personnel, and further defines the
rights of the United States and the Philippine
government in the matter of criminal jurisdiction,
movement of vessel and aircraft, importation
and exportation of equipment, materials and
supplies.

Undoubtedly, Section 25, Article XVIII,

which specifically deals with treaties involving
foreign military bases, troops, or facilities,
should apply in the instant case. To a certain
extent and in a limited sense, however, the
provisions of section 21, Article VII will find
applicability with regard to the issue and for the
sole purpose of determining the number of
votes required to obtain the valid concurrence of
the Senate, as will be further discussed
hereunder.
It is a finely-imbedded principle in statutory
construction that a special provision or law
prevails over a general one. Lex specialis
derogat generali. Thus, where there is in the
same statute a particular enactment and also a
general one which, in its most comprehensive
sense, would include what is embraced in the
former, the particular enactment must be
operative, and the general enactment must be
taken to affect only such cases within its
general language which are not within the
provision of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate
Court,[27] we enunciated:

x x x that another basic principle of statutory

construction mandates that general legislation
must give way to a special legislation on the
same subject, and generally be so interpreted
as to embrace only cases in which the special
provisions are not applicable (Sto. Domingo
vs. de los Angeles, 96 SCRA 139), that a
specific statute prevails over a general statute
(De Jesus vs. People, 120 SCRA 760) and that
where two statutes are of equal theoretical
application to a particular case, the one
designed therefor specially should prevail (Wil
Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that
Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is
no permanent placing of structure for the
establishment of a military base. On this score,
the Constitution makes no distinction between
transient and permanent. Certainly, we find
nothing in Section 25, Article XVIII that
CONSTITUTIONAL LAW 1

requiresforeign
stationed
or
Philippines.

troops or facilities to
placed permanently in

be
the

It is a rudiment in legal hermenuetics that

when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit
nec nos distinguire debemos.
In like manner, we do not subscribe to the
argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but
merely foreign troops and facilities, are involved
in the VFA. Notably, a perusal of said
constitutional provision reveals that the
proscription covers foreign military bases,
troops, or facilities. Stated
differently,
this
prohibition is not limited to the entry of troops
and facilities without any foreign bases being
established. The clause does not refer
to foreign
military
bases,
troops, or facilities collectively but treats them
as separate and independent subjects. The use
of comma and the disjunctive word or clearly
signifies disassociation and independence of
one thing from the others included in the
enumeration,[28]such
that,
the
provision
contemplates three different situations - a
military treaty the subject of which could be
either (a) foreign bases, (b) foreign troops, or (c)
foreign facilities - any of the three standing
alone places it under the coverage of Section
25, Article XVIII.
To this end, the intention of the framers of
the Charter, as manifested during the
deliberations of the 1986 Constitutional
Commission,
is
consistent
with
this
interpretation:
MR. MAAMBONG. I just want to address a
question or two to Commissioner Bernas.
This formulation speaks of three things: foreign
military bases, troops or facilities. My first
question is: If the country does enter into
such kind of a treaty, must it cover the
three-bases, troops or facilities-or could
the treaty entered into cover only one or
two?
FR. BERNAS. Definitely, it can cover only
one. Whether it covers only one or it
covers three, the requirement will be the
same.

MR.

MAAMBONG. In other words, the

Philippine government can enter into a
treaty covering not bases but merely
troops?

FR. BERNAS. Yes.

MR. MAAMBONG. I cannot find any reason why
the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch
our imagination a little bit more, we will find
some. We just want to cover everything.
[29]

(Underscoring Supplied)

Moreover, military bases established within

the territory of another state is no longer viable
because of the alternatives offered by new
means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea
vessels that can stay afloat in the sea even for
months and years without returning to their
home country. These military warships are
actually used as substitutes for a land-home
base not only of military aircraft but also of
military personnel and facilities. Besides,
vessels are mobile as compared to a landbased military headquarters.
At this juncture, we shall then resolve the
issue of whether or not the requirements of
Section 25 were complied with when the Senate
gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign
military bases, troops, or facilities in the country,
unless the following conditions are sufficiently
met, viz: (a) it must be under a treaty; (b) the
treaty must be duly concurred in by the
Senate and, when so required by congress,
ratified by a majority of the votes cast by the
people in a national referendum; and
(c) recognized as a treaty by the other
contracting state.
There is no dispute as to the presence of
the first two requisites in the case of the
VFA. The concurrence handed by the Senate
through Resolution No. 18 is in accordance with
the provisions of the Constitution, whether
under the general requirement in Section 21,
Article VII, or the specific mandate mentioned in
Section 25, Article XVIII, the provision in the
latter article requiring ratification by a majority of
CONSTITUTIONAL LAW 1

the votes cast in a national referendum being

unnecessary since Congress has not required
it.
As to the matter of voting, Section 21,
Article VII particularly requires that a treaty or
international agreement, to be valid and
effective, must be concurred in by at least
two-thirds of all the members of the
Senate. On the other hand, Section 25, Article
XVIII simply provides that the treaty be duly
concurred in by the Senate.
Applying the foregoing constitutional
provisions, a two-thirds vote of all the members
of the Senate is clearly required so that the
concurrence contemplated by law may be
validly obtained and deemed present. While it is
true that Section 25, Article XVIII requires,
among other things, that the treaty-the VFA, in
the instant case-be duly concurred in by the
Senate, it is very true however that said
provision must be related and viewed in light of
the clear mandate embodied in Section 21,
Article VII, which in more specific terms,
requires that the concurrence of a treaty, or
international agreement, be made by a two
-thirds vote of all the members of the
Senate. Indeed, Section 25, Article XVIII must
not be treated in isolation to section 21, Article,
VII.
As noted, the concurrence requirement
under Section 25, Article XVIII must be
construed in relation to the provisions of Section
21, Article VII. In a more particular language,
the concurrence of the Senate contemplated
under Section 25, Article XVIII means that at
least two-thirds of all the members of the
Senate favorably vote to concur with the treatythe VFA in the instant case.
Under these circumstances, the charter
provides that the Senate shall be composed of
twenty-four (24) Senators.[30] Without a tinge of
doubt, two-thirds (2/3) of this figure, or not less
than sixteen (16) members, favorably acting on
the proposal is an unquestionable compliance
with the requisite number of votes mentioned in
Section 21 of Article VII. The fact that there
were actually twenty-three (23) incumbent
Senators at the time the voting was made, [31] will
not alter in any significant way the circumstance

that more than two-thirds of the members of the

Senate concurred with the proposed VFA, even
if the two-thirds vote requirement is based on
this figure of actual members (23). In this
regard, the fundamental law is clear that twothirds of the 24 Senators, or at least 16
favorable votes, suffice so as to render
compliance with the strict constitutional
mandate of giving concurrence to the subject
treaty.
Having resolved that the first two requisites
prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on
the requirement that the VFA should be
recognized as a treaty by the United States of
America.
Petitioners content that the phrase
recognized as a treaty, embodied in section 25,
Article XVIII, means that the VFA should have
the advice and consent of the United States
Senate pursuant to its own constitutional
process, and that it should not be considered
merely an executive agreement by the United
States.
In opposition, respondents argue that the
letter of United States Ambassador Hubbard
stating that the VFA is binding on the United
States Government is conclusive, on the point
that the VFA is recognized as a treaty by the
United States of America. According to
respondents, the VFA, to be binding, must only
be accepted as a treaty by the United States.
This Court is of the firm view that the
phrase recognized as a treaty means that the
other
contracting
party accepts
or
acknowledges the agreement as a treaty.[32] To
require the other contracting state, the United
States of America in this case, to submit the
VFA to the United States Senate for
concurrence pursuant to its Constitution,[33] is to
accord strict meaning to the phrase.
Well-entrenched is the principle that the
words used in the Constitution are to be given
their ordinary meaning except where technical
terms are employed, in which case the
significance thus attached to them prevails. Its
language should be understood in the sense
they have in common use.[34]
CONSTITUTIONAL LAW 1

Moreover, it is inconsequential whether the

United States treats the VFA only as an
executive
agreement
because,
under
international law, an executive agreement is as
binding as a treaty.[35] To be sure, as long as the
VFA possesses the elements of an agreement
under international law, the said agreement is to
be taken equally as a treaty.
A treaty, as defined by the Vienna
Convention on the Law of Treaties, is an
international instrument concluded between
States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related
instruments, and whatever its particular
designation.[36] There are many other terms used
for a treaty or international agreement, some of
which are: act, protocol, agreement, compromis d
arbitrage, concordat, convention, declaration,
exchange of notes, pact, statute, charter
and modus vivendi. All writers, from Hugo
Grotius onward, have pointed out that the
names or titles of international agreements
included under the general term treaty have
little or no legal significance. Certain terms are
useful, but they furnish little more than mere
description.[37]
Article 2(2) of the Vienna Convention
provides that the provisions of paragraph 1
regarding the use of terms in the present
Convention are without prejudice to the use of
those terms, or to the meanings which may be
given to them in the internal law of the State.
Thus, in international law, there is no
difference between treaties and executive
agreements in their binding effect upon states
concerned, as long as the negotiating
functionaries have remained within their
powers.[38] International law continues to make
no distinction between treaties and executive
agreements:
they
are
equally
binding
obligations upon nations.[39]
In our jurisdiction, we have recognized the
binding effect of executive agreements even
without the concurrence of the Senate or
Congress. In Commissioner of Customs vs.
Eastern Sea Trading,[40] we had occasion to
pronounce:

x x x the right of the Executive to enter into

binding agreements without the necessity of
subsequent congressional approval has
been confirmed by long usage. From the
earliest days of our history we have entered
into executive agreements covering such
subjects as commercial and consular relations,
most-favored-nation rights, patent rights,
trademark and copyright protection, postal and
navigation arrangements and the settlement of
claims. The validity of these has never been
seriously questioned by our courts.
xxxxxxxxx

Furthermore, the United States Supreme Court

has expressly recognized the validity and
constitutionality of executive agreements
entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See,
also, U.S. vs. Curtis Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255;
U.S. vs. Belmont, 301 U.S. 324, 81 L. ed.
1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed.
796; Ozanic vs. U.S. 188 F. 2d. 288; Yale
Law Journal, Vol. 15 pp. 1905-1906;
California Law Review, Vol. 25, pp. 670675; Hyde on International Law [revised
Edition], Vol. 2, pp. 1405, 1416-1418;
willoughby on the U.S. Constitution Law,
Vol. I [2d ed.], pp. 537-540; Moore,
International Law Digest, Vol. V, pp. 210218; Hackworth, International Law Digest,
Vol. V, pp. 390-407). (Italics
Supplied) (Emphasis Ours)
The deliberations of the Constitutional
Commission
which
drafted
the
1987
Constitution is enlightening and highlyinstructive:
MR. MAAMBONG. Of course it goes without
saying that as far as ratification of the other
state is concerned, that is entirely their
concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever
they say. If they say that we have done
CONSTITUTIONAL LAW 1

everything to make it a treaty, then as far as

we are concerned, we will accept it as a
treaty.[41]

The records reveal that the United States

Government, through Ambassador Thomas C.
Hubbard, has stated that the United States
government has fully committed to living up to
the terms of the VFA. [42] For as long as the
united States of America accepts or
acknowledges the VFA as a treaty, and binds
itself further to comply with its obligations under
the treaty, there is indeed marked compliance
with the mandate of the Constitution.
Worth stressing too, is that the ratification,
by the President, of the VFA and the
concurrence of the Senate should be taken as a
clear an unequivocal expression of our nations
consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
Ratification is generally held to be an
executive act, undertaken by the head of the
state or of the government, as the case may be,
through which the formal acceptance of the
treaty is proclaimed.[43] A State may provide in its
domestic legislation the process of ratification of
a treaty. The consent of the State to be bound
by a treaty is expressed by ratification when: (a)
the treaty provides for such ratification, (b) it is
otherwise established that the negotiating
States agreed that ratification should be
required, (c) the representative of the State has
signed the treaty subject to ratification, or (d)
the intention of the State to sign the treaty
subject to ratification appears from the full
powers of its representative, or was expressed
during the negotiation.[44]
In our jurisdiction, the power to ratify is
vested in the President and not, as commonly
believed, in the legislature. The role of the
Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification.[45]
With the ratification of the VFA, which is
equivalent to final acceptance, and with the
exchange of notes between the Philippines and
the United States of America, it now becomes
obligatory and incumbent on our part, under the
principles of international law, to be bound by

the terms of the agreement. Thus, no less than

Section 2, Article II of the Constitution,
[46]
declares that the Philippines adopts the
generally accepted principles of international
law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom,
cooperation and amity with all nations.
As a member of the family of nations, the
Philippines agrees to be bound by generally
accepted rules for the conduct of its
international relations. While the international
obligation devolves upon the state and not upon
any particular branch, institution, or individual
member of its government, the Philippines is
nonetheless
responsible
for
violations
committed by any branch or subdivision of its
government or any official thereof. As an
integral part of the community of nations, we are
responsible to assure that our government,
Constitution and laws will carry out our
international obligation.[47] Hence, we cannot
readily plead the Constitution as a convenient
excuse for non-compliance with our obligations,
duties and responsibilities under international
law.
Beyond this, Article 13 of the Declaration of
Rights and Duties of States adopted by the
International Law Commission in 1949
provides: Every State has the duty to carry out
in good faith its obligations arising from treaties
and other sources of international law, and it
may not invoke provisions in its constitution or
its laws as an excuse for failure to perform this
duty.[48]
Equally important is Article 26 of the
convention which provides that Every treaty in
force is binding upon the parties to it and must
be performed by them in good faith. This is
known as the principle of pacta sunt
servanda which preserves the sanctity of
treaties and have been one of the most
fundamental principles of positive international
law, supported by the jurisprudence of
international tribunals.[49]
NO GRAVE ABUSE OF DISCRETION

CONSTITUTIONAL LAW 1

In the instant controversy, the President, in

effect, is heavily faulted for exercising a power
and performing a task conferred upon him by
the Constitution-the power to enter into and
ratify treaties. Through the expediency of Rule
65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of
discretion on the part of the chief Executive in
ratifying the VFA, and referring the same to the
Senate pursuant to the provisions of Section 21,
Article VII of the Constitution.
On this particular matter, grave abuse of
discretion implies such capricious and
whimsical exercise of judgment as is equivalent
to lack of jurisdiction, or, when the power is
exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and it
must be so patent and gross as to amount to an
evasion of positive duty enjoined or to act at all
in contemplation of law.[50]
By constitutional fiat and by the intrinsic
nature of his office, the President, as head of
State, is the sole organ and authority in the
external affairs of the country. In many ways,
the President is the chief architect of the nations
foreign policy; his dominance in the field of
foreign relations is (then) conceded. [51] Wielding
vast powers an influence, his conduct in the
external affairs of the nation, as Jefferson
describes, is executive altogether."[52]
As regards the power to enter into treaties
or international agreements, the Constitution
vests the same in the President, subject only to
the concurrence of at least two-thirds vote of all
the members of the Senate. In this light, the
negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts
which pertain solely to the President, in the
lawful exercise of his vast executive and
diplomatic powers granted him no less than by
the fundamental law itself. Into the field of
negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it.
[53]
Consequently, the acts or judgment calls of
the President involving the VFA-specifically the
acts of ratification and entering into a treaty and
those necessary or incidental to the exercise of
such principal acts - squarely fall within the
sphere of his constitutional powers and thus,

may not be validly struck down, much less

calibrated by this Court, in the absence of clear
showing of grave abuse of power or discretion.
It is the Courts considered view that the
President, in ratifying the VFA and in submitting
the same to the Senate for concurrence, acted
within the confines and limits of the powers
vested in him by the Constitution. It is of no
moment that the President, in the exercise of
his wide latitude of discretion and in the honest
belief that the VFA falls within the ambit of
Section 21, Article VII of the Constitution,
referred the VFA to the Senate for concurrence
under the aforementioned provision. Certainly,
no abuse of discretion, much less a grave,
patent and whimsical abuse of judgment, may
be imputed to the President in his act of ratifying
the VFA and referring the same to the Senate
for the purpose of complying with the
concurrence requirement embodied in the
fundamental law. In doing so, the President
merely performed a constitutional task and
exercised a prerogative that chiefly pertains to
the functions of his office. Even if he erred in
submitting the VFA to the Senate for
concurrence under the provisions of Section 21
of Article VII, instead of Section 25 of Article
XVIII of the Constitution, still, the President may
not be faulted or scarred, much less be
adjudged guilty of committing an abuse of
discretion in some patent, gross, and capricious
manner.
For while it is conceded that Article VIII,
Section 1, of the Constitution has broadened
the scope of judicial inquiry into areas normally
left to the political departments to decide, such
as those relating to national security, it has not
altogether done away with political questions
such as those which arise in the field of foreign
relations.[54] The High Tribunals function, as
sanctioned by Article VIII, Section 1, is merely
(to) check whether or not the governmental
branch or agency has gone beyond the
constitutional limits of its jurisdiction, not that it
erred or has a different view. In the absence of
a showing (of) grave abuse of discretion
amounting to lack of jurisdiction, there is no
occasion for the Court to exercise its corrective
powerIt has no power to look into what it thinks
is apparent error.[55]
CONSTITUTIONAL LAW 1

As to the power to concur with treaties, the

constitution lodges the same with the Senate
alone. Thus, once the Senate[56] performs that
power, or exercises its prerogative within the
boundaries prescribed by the Constitution, the
concurrence cannot, in like manner, be viewed
to constitute an abuse of power, much less
grave abuse thereof. Corollarily, the Senate, in
the exercise of its discretion and acting within
the limits of such power, may not be similarly
faulted for having simply performed a task
conferred and sanctioned by no less than the
fundamental law.
For the role of the Senate in relation to
treaties is essentially legislative in character;
[57]
the Senate, as an independent body
possessed of its own erudite mind, has the
prerogative to either accept or reject the
proposed agreement, and whatever action it
takes in the exercise of its wide latitude of
discretion, pertains to the wisdom rather than
the legality of the act. In this sense, the Senate
partakes a principal, yet delicate, role in keeping
the principles of separation of powers and of checks
and balances alive and vigilantly ensures that
these cherished rudiments remain true to their
form in a democratic government such as
ours. The Constitution thus animates, through
this treaty-concurring power of the Senate, a
healthy system of checks and balances
indispensable toward our nations pursuit of
political maturity and growth. True enough,
rudimentary is the principle that matters
pertaining to the wisdom of a legislative act are
beyond the ambit and province of the courts to
inquire.
In fine, absent any clear showing of grave
abuse of discretion on the part of respondents,
this Court- as the final arbiter of legal
controversies and staunch sentinel of the rights
of the people - is then without power to conduct
an incursion and meddle with such affairs purely
executive and legislative in character and
nature. For the Constitution no less, maps out
the distinct boundaries and limits the metes and
bounds within which each of the three political
branches of government may exercise the
powers exclusively and essentially conferred to
it by law.

WHEREFORE, in light of the foregoing

disquisitions, the instant petitions are hereby
DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Kapunan,
Quisumbing, Purisima, Pardo, Gonzaga-Reyes,
Ynares-Santiago, and De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J.
Puno.
Puno, J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close
personal and former professional relations with
a petitioner, Sen. J.R. Salonga.

[1]

Article V. Any such armed attack and all measures

taken as a result thereof shall be immediately reported to
the Security Council of the United Nations. Such
measures shall be terminated when the Security Council
has taken the measure necessary to restore and maintain
international peace and security.
[2]

Joint Report of the Senate Committee on Foreign

Relation and the Committee on National Defense and
Security on the Visiting Forces Agreement.
[3]

Joint Committee Report.

[4]

Petition, G.R. No. 138698, Annex B, Rollo, pp. 61-62.

INSTRUMENT OF RATIFICATION
TO ALL TO WHOM THESE PRESENTS SHALL COME,
GREETINGS:
KNOW YE, that whereas, the Agreement between the
government of the Republic of the Philippines and the
Government of the United States of America Regarding
the Treatment of the United States Armed Forces Visiting
the Philippines, hereinafter referred to as VFA, was
signed in Manila on 10 February 1998;
WHEREAS, the VFA is essentially a framework to
promote bilateral defense cooperation between the
Republic of the Philippines and the United States of
America and to give substance to the 1951 RP-US Mutual
Defense Treaty (RP-US MDT). To fulfill the objectives of
the RP-US MDT, it is necessary that regular joint military
exercises are conducted between the Republic of the
Philippines and the United States of America;
WHEREAS, the VFA seeks to provide a conducive setting
for the successful conduct of combined military exercises
between the Philippines and the United States armed
forces to ensure interoperability of the RP-US MDT;

CONSTITUTIONAL LAW 1

WHEREAS, in particular, the VFA provides the

mechanism for regulating the circumstances and
conditions under which US armed forces and defense
personnel may be present in the Philippines such as the
following inter alia:
(a) specific requirements to facilitate the admission of
United States personnel and their departure from the
Philippines in connection with activities covered by the
agreement;
(b) clear guidelines on the prosecution of offenses
committed by any member of the United States armed
forces while in the Philippines;
(c) precise directive on the importation and exportation of
United States Government equipment, materials, supplies
and other property imported into or acquired in the
Philippines by or on behalf of the United States armed
forces in connection with activities covered by the
Agreement; and
(d) explicit regulations on the entry of United States
vessels, aircraft, and vehicles;
WHEREAS, Article IX of the Agreement provides that it
shall enter into force on the date on which the Parties
have notified each other in writing, through diplomatic
channels, that they have completed their constitutional
requirements for its entry into force. It shall remain in
force until the expiration of 180 days from the date on
which either Party gives the other Party written notice to
terminate the Agreement.
NOW, THEREFORE, be it known that I, JOSEPH
EJERCITO ESTRADA, President of the Republic of the
Philippines, after having seen and considered the
aforementioned Agreement between the Government of
the United States of America Regarding the Treatment of
the United States Armed Forces Visiting the Philippines,
do hereby ratify and confirm the same and each and
every Article and Clause thereof.
IN TESTIMONY WHEREOF, I have hereunto set my hand
and caused the seal of the Republic of the Philippines to
be affixed.
GIVEN under my hand at the City of Manila, this 5th day
of October, in the year of Our Lord one thousand nine
hundred and ninety-eight.
[5]

Petition, G.R. No. 138587, Annex C, Rollo, p. 59.

The Honorable Senate President and

Member of the Senate
Senate of the Philippines
Pasay City
Gentlemen and Ladies of the Senate:
I have the honor to transmit herewith the Instrument of
Ratification duly signed by H.E. President Joseph Ejercito
Estrada, his message to the Senate and a draft Senate
Resolution of Concurrence in connection with the
ratification of the AGREEMENT BETWEEN THE

GOVERNMENT OF THE REPUBLIC OF THE

PHILIPPINES AND THE GOVERNMENT OF THE
UNITED STATES OF AMERICA REGARDING THE
TREATMENT OF THE UNITED STATES ARMED
FORCES VISITING THE PHILIPPINES.
With best wishes.
Very truly yours,
RONALDO B. ZAMORA
Executive Secretary
[6]

Petition, G.R. No. 138698, Annex C.

[7]

Philippines against external threats; and enabling the

Philippines to bolster the stability of the Pacific area in a
shared effort with its neighbor-states;
WHEREAS, the VFA will enhance our political, economic
and security partnership and cooperation with the United
States-which has helped promote the development of our
country and improved the lives of our people;
WHEREAS, in accordance with the powers and functions
of Senate as mandated by the Constitution, this Chamber,
after holding several public hearings and deliberations,
concurs in the Presidents ratification of the VFA, for the
following reasons:

Between January 26 and March 11, 1999, the two

Committees jointly held six public hearings-three in
Manila and one each in General Santos, Angeles City and
Cebu City.

(1) The Agreement will provide the legal mechanism to

promote defense cooperation between the Philippines
and the U.S. and thus enhance the tactical, strategic, and
technological capabilities of our armed forces;

[8]

(2) The Agreement will govern the treatment of U.S.,

military and defense personnel within Philippine territory,
while they are engaged in activities covered by the Mutual
Defense Treaty and conducted with the prior approval of
the Philippine government; and

Petition , G.R. No. 138570, Annex C, Rollo, pp. 88-95.

WHEREAS, the VFA is essentially a framework for

promoting the common security interest of the two
countries; and for strengthening their bilateral defense
partnership under the 1951 RP-US Mutual Defense
Treaty;
xxxxxxxxx
WHEREAS, the VFA does not give unrestricted access or
unhampered movement to US Forces in the Philippines;
in fact, it recognizes the Philippine government as the
sole authority to approve the conduct of any visit or
activity in the country by US Forces, hence the VFA is not
a derogation of Philippine sovereignty;
WHEREAS, the VFA is not a basing arrangement; neither
does it pave way for the restoration of the American
bases and facilities in the Philippines, in contravention of
the prohibition against foreign bases and permanent
stationing of foreign troops under Article XVIII, Section 25
of the 1987 Constitution-because the agreement
envisions only temporary visits of US personnel engaged
in joint military exercises or other activities as may be
approved by the Philippine Government;
WHEREAS, the VFA gives Philippine courts primary
jurisdiction over offenses that may be committed by US
personnel within Philippine territory, with the exception of
those incurred solely against the security or property of
the Us or solely against the person or property of US
personnel, and those committed in the performance of
official duty;
xxxxxxxxx
WHEREAS, by virtue of Article II of the VFA, the United
States commits to respect the laws of the Republic of the
Philippines, including the Constitution, which declares in
Article II, Section 8 thereof, a policy of freedom from
nuclear weapons consistent with the national interest;
WHEREAS, the VFA shall serve as the legal mechanism
to promote defense cooperation between two countriesenhancing the preparedness of the Armed Forces of the

CONSTITUTIONAL LAW 1

(3) The Agreement will provide the regulatory mechanism

for the circumstances and conditions under which U.S.
military forces may visit the Philippines; x x x
xxxxxxxxx
WHEREAS, in accordance with Article IX of the VFA, the
Philippine government reserves the right to terminate the
agreement unilaterally once it no longer redounds to our
national interest: Now, therefore, be it
Resolved, that the Senate concur, as it hereby concurs, in
the Ratification of the Agreement between the
Government of the Republic of the Philippines and the
United States of America Regarding the Treatment of
United States Armed Forces visiting the Philippines. x x x
[9]

The following voted for concurrence: (1) Senate

President Marcelo Fernan, (2) Senate President Pro
Tempore Blas Ople, (3) Senator Franklin Drilon, (4)
Senator Rodolfo Biazon, (5) Senator Francisco Tatad, (6)
Senator Renato Cayetano, (7) Senator Teresa AquinoOreta, (8) Senator Robert Barbers, (9) Senator Robert
Jaworski, (10) Senator Ramon Magsaysay, Jr., (11)
Senator John Osmea, (12) Senator Juan Flavier, (13)
Senator Mirriam Defensor-Santiago, (14) Senator Juan
Ponce-Enrile, (15) Senator Vicente Sotto III, (16) Senator
Ramon Revilla, (17) Senator Anna Dominique Coseteng,
and (18) Senator Gregorio Honasan.
Only the following voted to reject the ratification of the
VFA: (1) Senator Teofisto Guingona, Jr., (2) Senator Raul
Roco, (3) Senator Sergio Osmena III, (4) Senator Aquilino
Pimentel, Jr., and (5) Senator Loren Legarda-Leviste.
[10]

See Petition, G.R. No. 138570, Rollo, pp. 105.

[11]

Minute Resolution dated June 8, 1999.

[12]

See Consolidated Comment.

[13]

Reply to Consolidated Comment, G.R. No. 138698;

G.R. No. 138587.
[14]

Valmonte vs. Philippine Charity Sweepstakes Office,

(Res.) G.R. No. 78716, September 22, 1987, cited in
Telecommunications and Broadcast Attorneys of the
Philippines, Inc. vs. COMELEC, 289 SCRA 337, 343
[1998]; Valley Forge College vs. Americans United, 454
US 464, 70 L. Ed. 2d 700 [1982]; Bugnay Const. And Dev.
Corp. vs. Laron, 176 SCRA 240, 251-252 [1989];
Tatad vs. Garcia, Jr. 243 SCRA 436, 473 [1995].

provides: He shall have power, by and with the advice

and consent of the Senate to make treaties, provided twothirds of the senators present concur.
[34]

J.M. Tuason & Co., Inc. vs. Land Tenure Association,

31 SCRA 413 [1970].
[35]

Altman Co. vs. United States, 224 US 263 [1942], cited

in Coquia and Defensor-Santiago, International Law,
1998 Ed. P. 497.
[36]

[15]

See Article VI, Sections 24, 25 and 29 of the 1987

Constitution.

[37]

[16]

[38]

Pascual vs. Secretary of Public Works, 110 Phil. 331

[1960]; Maceda vs. Macaraig, 197 SCRA 771 [1991];
Lozada vs. COMELEC, 120 SCRA 337 [1983];
Dumlao vs. COMELEC, 95 SCRA 392 [1980];
Gonzales vs. Marcos, 65 SCRA 624 [1975].
[17]

176 SCRA 240, 251-252 [1989].

[18]

235 SCRA 506 [1994].

[19]

Consolidated Memorandum, p. 11.

[20]

Araneta vs. Dinglasan, 84 Phil. 368 [1949]; Iloilo Palay

& Corn Planters Association vs. Feliciano, 121 Phil. 358
[1965]; Philippine Constitution Association vs. Gimenez,
122 Phil. 894 [1965].
[21]

21 SCRA 774 [1967].

180 SCRA 496, 502 [1988] cited in Kilosbayan, Inc. vs.

Guingona, Jr., 232 SCRA 110 [1994].
197 SCRA 52, 60 [1991].

[24]

232 SCRA 110 [1994].

[25]

J. Santos vs. Northwest Orient Airlines, 210 SCRA

256, 261 [1992].
[26]

Manila Railroad Co. vs. Collector of Customs, 52 Phil.

950.
[27]

157 SCRA 282 [1988] cited in

Sandiganbayan, 173 SCRA 72, 85 [1989].
[28]

Republic vs.

Castillo-co v. Barbers, 290 SCRA 717, 723 (1998).

[29]

Records of the Constitutional Commission, September

18, 1986 Deliberation, p. 782.
[30]

1987 Constitution, Article VI, Section 2. - the Senate

shall be composed of twenty-four Senators who shall be
elected at large by the qualified voters of the Philippines,
as may be provided by law.
[31]

The 24th member (Gloria Macapagal-Arroyo) of the

Senate whose term was to expire in 2001 was elected
Vice-President in the 1998 national elections.
[32]

Ballentines Legal Dictionary, 1995.

[33]

Article 2, Section 2, paragraph 2 of the United States

Constitution, speaking of the United States President

CONSTITUTIONAL LAW 1

Gerhard von Glahn, Law among Nations, an

Introduction to Public International Law, 4th Ed., p. 480.
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].
[39]

Richard J. Erickson, The Making of Executive

Agreements by the United States Department of Defense:
An agenda for Progress, 13 Boston U. Intl. L.J. 58 [1995],
citing Restatement [third] of Foreign Relations Law pt. III,
introductory note [1987] and Paul Reuter, Introduction to
the Law of Treaties 22 [Jose Mico & Peter Haggemacher
trans., 1989] cited in Consolidated Memorandum, p. 32.
[40]

3 SCRA 351, 356-357 [1961].

[41]

4 Record of the Constitutional Commission 782

[Session of September 18, 1986].
[42]

[22]

[23]

Vienna Convention, Article 2.

Letter of Ambassador Hubbard to Senator Miriam

Defensor-Santiago:
Dear Senator Santiago:
I am happy to respond to your letter of April 29,
concerning the way the US Government views the
Philippine-US Visiting Forces Agreement in US legal
terms. You raise an important question and I believe this
response will help in the Senate deliberations.
As a matter of both US and international law, an
international agreement like the Visiting Forces
Agreement is legally binding on the US Government, In
international legal terms, such an agreement is a
treaty. However, as a matter of US domestic law, an
agreement like the VFA is an executive agreement,
because it does not require the advice and consent of the
senate under Article II, section 2 of our Constitution.
The Presidents power to conclude the VFA with the
Philippines, and other status of forces agreements with
the other countries, derives from the Presidents
responsibilities for the conduct of foreign relations (Art. II,
Sec. 1) and his constitutional powers as Commander in
Chief of the Armed Forces. Senate advice and consent is
not needed, inter alia, because the VFA and similar
agreements neither change US domestic nor require
congressional appropriation of funds. It is important to
note that only about five percent of the international
agreement entered into by the US Governments require
Senate advice and consent. However, in terms of the US
Governments obligation to adhere to the terms of the

VFA, there is no difference between a treaty concurred in

by our Senate and an executive agreement. Background
information on these points can be found in the
Restatement 3rd of the Foreign Relations Law of the
United States, Sec. 301, et seq. [1986].
I hope you find this answer helpful. As the Presidents
representative to the Government of the Philippines, I can
assure you that the United States Government is fully
committed to living up to the terms of the VFA.
Sincerely yours,
THOMAS C. HUBBARD
Ambassador
[43]

Gerhard von Glahn, Law Among Nations, An

Introduction to Public International Law, 4th Ed., p. 486.
[44]

Article 14 of the Vienna Convention, cited in Coquia

and Defensor-Santiago, Intenational Law, 1998 Ed., pp.
506-507.
[45]

Cruz, Isagani, International Law, 1985 Ed., p. 175.

[46]

Sec. 2. The Philippines renounces war as an

instrument of national policy, adopts the generally
accepted principles of international law as part of the law
of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.
[47]

Louis Henkin, Richard C. Pugh, Oscar Schachter,

Hans Smit, International Law, Cases and Materials, 2nd
Ed American Casebook Series, p. 136.
[48]

Gerhard von Glah, supra, p. 487.

[49]

Harris, p. 634 cited in Coquia, International Law, supra,

p. 512.
[50]

Cuison vs. CA, 289 SCRA 159 [1998]. See also

Jardine vs. NLRC, G.R. No. 119268, Feb 23, 2000 citing
Arroyo vs. De Venecia, 277 SCRA 268 [1997].
[51]

Cortes, The Philippine Presidency a study of Executive

Power, 2nd Ed., p. 195.
[52]

Cruz, Phil. Political Law, 1995 Ed., p. 223.

[53]

United States vs. Curtis Wright Corp., 299 U.S. 304

(1934), per Justice Sutherland.
[54]

Arroyo vs. De Venecia, 277 SCRA 269 [1997].

[55]

Co vs. Electoral Tribunal of the House of

Representatives, 199 SCRA 692, 701 (1991); Llamas vs.
Orbos, 202 SCRA 849, 857 (1991); Lansang vs. Garcia,
42 SCRA at 480-481 [1971].
[56]

1987 Constitution, Article VI, Section 1. - The

legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House
of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum.
[57]

See Akehurst, Michael: Modern Introduction to

International Law, (London: George Allen and Unwin) 5th

CONSTITUTIONAL LAW 1

ed., p. 45; United States vs. Curtiss-Wright Export Corp.,

299 U.S. 304, 319 (1936).

governments in the matter of criminal jurisdiction,

movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.
Petitioners argued, inter alia, that the VFA
violates 25, Article XVIII of the 1987 Constitution,
which provides that foreign military bases, troops,
or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the
Senate . . . and recognized as a treaty by the other
contracting State.
II.

THE ISSUE
Was the VFA unconstitutional?

III. THE RULING

[The Court DISMISSED the consolidated
petitions, held that the petitioners did not commit
grave abuse of discretion, and sustained the
constitutionality of the VFA.]
NO, the VFA is not unconstitutional.
Section 25, Article XVIII disallows foreign
military bases, troops, or facilities in the country,
unless the following conditions are sufficiently
met, viz: (a) it must be under a treaty; (b) the treaty
must be duly concurred in by the Senate and,
when so required by congress, ratified by a majority
of the votes cast by the people in a national
referendum; and (c) recognized as a treaty by the
other contracting state.

G.R. No. 138570, October 10, 2000

Bayan v. Zamora Case Digest
BUENA, J.:
I.

THE FACTS

The Republic of the Philippines and the

United States of America entered into an agreement
called the Visiting Forces Agreement (VFA). The
agreement was treated as a treaty by the Philippine
government and was ratified by then-President
Joseph Estrada with the concurrence of 2/3 of the
total membership of the Philippine Senate.
The VFA defines the treatment of U.S. troops
and personnel visiting the Philippines. It provides for
the guidelines to govern such visits, and further
defines the rights of the U.S. and the Philippine
CONSTITUTIONAL LAW 1

There is no dispute as to the presence of the

first two requisites in the case of the VFA. The
concurrence handed by the Senate through
Resolution No. 18 is in accordance with the
provisions of the Constitution . . . the provision in [in
25, Article XVIII] requiring ratification by a majority
of the votes cast in a national referendum being
unnecessary since Congress has not required it.
xxx

xxx

xxx
This Court is of the firm view that the
phrase recognized as a treaty means that the
other
contracting
party accepts
or
acknowledges the agreement as a treaty. To
require the other contracting state, the United States
of America in this case, to submit the VFA to the
United States Senate for concurrence pursuant to its

Constitution, is to accord strict meaning to the

phrase.

an agreement under international law, the said

agreement is to be taken equally as a treaty.
xxx

Well-entrenched is the principle that the

words used in the Constitution are to be given their
ordinary meaning except where technical terms are
employed, in which case the significance thus
attached to them prevails. Its language should be
understood in the sense they have in common use.
Moreover, it is inconsequential whether the
United States treats the VFA only as an executive
agreement because, under international law, an
executive agreement is as binding as a treaty. To be
sure, as long as the VFA possesses the elements of

CONSTITUTIONAL LAW 1

xxx

xxx
The records reveal that the United States
Government, through Ambassador Thomas C.
Hubbard, has stated that the United States
government has fully committed to living up to the
terms of the VFA. For as long as the United States
of America accepts or acknowledges the VFA as a
treaty, and binds itself further to comply with its
obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution