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SUPREME COURT
MANILA
EN BANC
BAGONG ALYANSANG
MAKABAYAN (BAYAN),
represented by its Secretary General,
RENATO M. REYES, JR., et al.,
Petitioners,
- versus -
DEPARTMENT OF DEFENSE
SECRETARY VOLTAIRE
GAZMIN, et al.,
Respondents.
x------------------------------------------------x
RENE A.V. SAGUISAG, et al.,
Petitioners,
- versus -
EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., et al.,
Respondents.
x------------------------------------------------x
KILUSANG MAYO UNO,
represented by its Chairperson,
ELMER LABOG, et al.,
Petitioners-in-Intervention.
x------------------------------------------------x
RENE A.Q. SAGUISAG, JR.,
Petitioner-in-Intervention.
x-----------------------------------------------------------------------------------x
G.R. No. 212426
G.R. No. 212444
Consolidated Comment 2 G.R. Nos. 212444, 212426
CONSOLIDATED COMMENT
The Enhanced Defense Cooperation Agreement is an implementing devise for
the Republics general commitments under the Mutual Defense Treaty and its specific
commitments under the Visiting Forces Agreement. The President as Commander-in-
Chief, Chief Executive, and Chief Architect of foreign policy has the constitutional
authority and duty to maintain the integrity of the national territory, promote national
security, secure peace and prevent hostilities. The formulation and execution of the
details of a national defense policy require the highest possible judicial deference.
Respondents, through the Office of the Solicitor General (OSG),
respectfully state:
RELEVANT FACTS
1. The Mutual Defense Treaty. On 30 August 1951, the Republic of
the Philippines and the United States of America (US) entered into the
Mutual Defense Treaty (MDT) which stipulates that the parties shall
maintain and develop their individual and collective capacity to resist
armed attack.
1
The MDT, concurred in by the Philippine Senate on 12
May 1952,
2
locates the parties obligations within their commitments
under the Charter of the United Nations (UN). Article I of the MDT
provides:
The Parties undertake, as set forth in the Charter of the United
Nations, to settle any international disputes in which they may be
involved by peaceful means in such a manner that international peace
and security and justice are not endangered and to refrain in their
international relations from the threat or use of force in any manner
inconsistent with the purposes of the United Nations.
2. The Visiting Forces Agreement. To implement the MDT and the
objective of both parties to strengthen their present efforts to collective
defense for the preservation of peace and security,
3
the Republic of the
Philippines and the US entered into the Visiting Forces Agreement (VFA)
on 10 February 1998. The VFA was concurred in by the Philippine Senate
on 27 May 1999.
4
It lays down the terms and conditions under which US
personnel
5
and facilities
6
may be present in the Philippines. Under the
VFA, the Philippines and the US have participated in the annual Balikatan
exercises, which involve the training of Philippine troops to enhance
1
MDT, Art. II.
2
S.R. No. 84, 12 May 1952.
3
VFA, Preamble.
4
S.R. No. 18, 27 May 1999.
5
VFA, Article I.
6
VFA, Article VII.
Consolidated Comment 3 G.R. Nos. 212444, 212426
defense capabilities and promote interoperability of Philippine and US
forces.
7
3. The Enhanced Defense Cooperation Agreement. To implement the
MDT and the VFA,
8
the Enhanced Defense Cooperation Agreement
(EDCA) was signed by Department of National Defense (DND)
Secretary Voltaire Gazmin for the Philippines and by US Ambassador to
the Philippines Philip Goldberg for the US on 28 April 2014.
4. Two petitions under Rule 65 of the Rules of Court, i.e. the
BAYAN Petition in G.R. No. 212444 and the Saguisag Petition in G.R.
No. 212426, seek to declare the EDCA unconstitutional and to prohibit
its implementation. In a Resolution dated 03 June 2014, the Honorable
Court ordered the consolidation of these petitions and required
respondents to comment.
5. Subsequently, petitions-in-intervention were filed by Kilusang
Mayo Uno, et al. and Rene A.Q. Saguisag, Jr. On 08 July 2014, the
Honorable Court resolved to require respondents to comment on the
petitions-in-intervention, without giving due course to the said petitions.
6. Considering that the petitions involve common questions of
law, respondents filed a Motion to File a Consolidated Comment on 12
August 2014. On the same date, respondents moved for an additional
extension of time to file the Consolidated Comment because the OSG has
not yet received a copy of the petition-in-intervention filed by Rene A.Q.
Saguisag, Jr.
7. To date, the Honorable Court has not yet issued a resolution
on these motions. In the interest of time, respondents hereby file this
Consolidated Comment to the petitions.
PRELIMINARY AVERMENTS
8. Lack of Standing to Assert Institutional Prerogatives.
Petitioners assail the constitutionality of the EDCA on the ground that it
is a treaty that requires the concurrence of the Senate under Article XVIII,
Section 25 of the Constitution. However, none of the petitioners is a
member of the Senate.
7
Terms of Reference approved by Department of Foreign Affairs Secretary Teofisto T.
Guingona, cited in Lim v. Executive Secretary, G.R. No. 151445, 11 April 2002.
8
EDCA, Preamble.
Consolidated Comment 4 G.R. Nos. 212444, 212426
9. The rule is that only incumbent Senators have standing to
raise the issue of Senate concurrence because it is their constitutional
function that is allegedly impaired.
9
The Honorable Court has ruled that
only incumbent Senators may raise this issue because they alone have
legal standing to see to it that the prerogative, powers and privileges
vested by the Constitution in their office remain inviolate.
10
It is a
curious fact that only former Senators joined petitioners in filing these
cases. As such, they are in no position to concur in the EDCA and thus
are not injured by the alleged lack of Senate concurrence.
10. There is also no allegation that somehow the members of the
Senate have been prevented from exercising their privileges. Absent any
evidence that Senators have been prevented from invoking the privileges
of their institution, the Honorable Court may well presume that the
Senate itself sees no need for such concurrence. Otherwise, the
Honorable Court could end up arbitrating constitutional questions and
allocat[ing] constitutional boundaries
11
without a dispute upon the
instance of third parties, however well-intentioned.
11. Inappropriateness of Taxpayer Standing. Petitioners cannot also
sue as taxpayers because the EDCA is neither a tax measure, nor one
directed at the disbursement of public funds. In the absence of credible
allegation of an illegal or unconstitutional disbursement of public funds,
the Honorable Court cannot simply take at face value petitioners bare
assertion of their right to sue as taxpayers. The Honorable Court should
avoid being goaded into assuming jurisdiction at the say-so of anyone who
pays taxes.
12. The Inapplicability of the Transcendental Importance Exception. The
mere invocation of transcendental importance cannot also confer
standing on petitioners. In Anak Mindanao Party-List Group v. Executive
Secretary,
12
the Honorable Court held that a party who assails the
constitutionality of a statute must have a direct and personal interest. It
must show not only that the law or any governmental act is invalid, but
also that it sustained or is in immediate danger of sustaining some direct
injury as a result of its enforcement, and not merely that it suffers thereby
in some indefinite way.
13
Petitioners cannot use transcendental
importance to cure their inability to comply with the constitutional
requirement of standing. As the Honorable Court said, [c]ourts do not sit
9
CONSTITUTION, Art. VII, Sec. 21. No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of the Senate.
10
Biraogo v. The Philippine Truth Commission, G.R. No. 192935, 07 December 2010.
11
Angara v. Electoral Commission, G.R. No. L-45081, 15 July 1936.
12
G.R. No. 166052, 29 August 2007.
13
Id.
Consolidated Comment 5 G.R. Nos. 212444, 212426
to adjudicate mere academic questions to satisfy scholarly interest therein,
however intellectually solid the problem may be.
14
13. At this time in our constitutional history, the Honorable
Court should already note that the overuse of transcendental
importance as an exception to the traditional requirements for
constitutional litigation has cheapened the value of the constitutions
safeguards to adjudicationcase or controversy, standing, prematurity,
political questions, mootnessthat have long served to protect the
Supreme Court from unnecessary litigation of constitutional questions
and potential clashes with the other departments of government.
14. Policy questions. Objections have been raised against the
EDCA on the ground that it is highly disadvantageous to the Philippine
Government. It is argued that [a]lthough [the EDCA] was signed in the
context of heightened tension with China and dangled as proof of
Americas ironclad commitment to defend the Philippines against
Chinese expansionism, there is no assurance that the United States will
actually come to the aid of the Philippines in case of invasion by China.
15
It is also claimed that [t]he terms and provisions of the EDCA are an
affront to the national interest as they are evidently lopsided in favor of
the [US].
16
15. There is a difference between political posturing and a legal
argument. Whether the EDCA is highly disadvantageous to the
Philippine Government or lopsided in favor of the [US]is not a legal
question that can serve as a basis for a sound legal argument. While
respondents maintain that it is in the interest of the Philippines to enter
into the EDCA, the Honorable Court is not the appropriate forum to
settle these policy questions. Under the democratic framework of the
Constitution, petitioners should address their advocacies to the political
branches of government. Petitioners cannot simply ask the Honorable
Court to arbitrate policy questions, especially in matters of national
security and foreign affairs. We urge the Honorable Court to distinguish
between political speech and constitutional argument.
16. In the language and principles of the Constitution, we can
find a rational separation between debates that should be made in a
special legal forum such as the Supreme Court, on one hand, whose
jurisdiction is bounded by the requirements of Article VIII, Sections 1
14
Philippine Association of Universities and Colleges v. Secretary of Education, G.R. No. L-5279, 31
October 1955.
15
Saguisag Petition, p. 36.
16
Id. at 39.
Consolidated Comment 6 G.R. Nos. 212444, 212426
and 5, and those that should be held in law schools, the various media,
and on the streets, on the other hand.
17. In fact, it is entirely within the Honorable Courts discretion
to rule separately (that is, in a separate resolution) on the jurisdictional
questions presented in the various petitions in these consolidated cases.
Such decisional strategy would provide a specific occasion for the
Honorable Court to seriously tackle the question whether a decision on
the substantive questions should be had in the first place. Too many cases
have been decided on the merits by the Honorable Court that perhaps
should have been decided with a more deliberate focus on the
jurisdictional questions.
18. In any case, since the EDCA is an implementing agreement
of the MDT and the VFA, policy questions relating to activities involving
American troops and facilities have long been settled by the political
branches through their continued implementation of these international
agreements. The Honorable Court has consistently affirmed the
constitutionality of the MDT and the VFA in Bayan v. Zamora,
17
Lim,
Nicolas v. Romulo
18
and Arigo v. Swift.
19
The Honorable Court declared in
Lim that [i]t is the VFA which gives continued relevance to the MDT
despite the passage of years.
20
In Arigo, the Honorable Court said that
[t]he VFA [is] a valid and binding agreement [and that] the parties are
required as a matter of international law to abide by its terms and
provisions.
21
19. Consistent with the foregoing characterization, the 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.
20. In Bayan, the Honorable Court declared
[b]y 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 isconceded. Wielding vast powers and influence,
his conduct in the external affairs of the nationis executive
altogether.
22
17
G.R. No. 138570, 10 October 2000.
18
G.R. No. 175888, 11 February 2009.
19
G.R. No. 206510, 16 September 2014.
20
Lim v. Executive Secretary, supra note 7 at 752.
21
Supra note 19 at 20.
22
Supra note 17.
Consolidated Comment 7 G.R. Nos. 212444, 212426
As the Chief Executive and architect of the nations 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-Chief
23
and protector of the Filipino people,
24
the
President entered into the EDCA to uphold the security interests of the
Philippines.
21. Prematurity and speculations. The EDCA provides for
separate agreements to carry out specific activities such as joint exercises,
the prepositioning of materiel, or construction activities. Under the
EDCA, every instance of defense cooperation is subject to either existing
bilateral mechanisms or the requirement of subsequent implementing
agreements. This arrangement is consistent with the VFA because the
VFA requires approval for specific activities by the Philippine
Government. This arrangement serves as the individualized consent
mechanism in favor of the Philippines to approve activities before they
are undertaken within its territory.
22. For example, the Agreed Locations under the EDCA will
be determined through mutual agreement, to be specified either through
an annex or implementing arrangement.
25
To date, the parties have not yet
finalized the list of Agreed Locations either through an annex or a
separate agreement.
23. Authorization to preposition materiel will be secured through
bilateral security mechanisms, such as the MDB and SEB.
26
The Mutual
Defense Board (MDB) and Security Engagement Board (SEB) are joint
bodies composed of military and diplomatic officials from the Philippines
and the US. The MDB coordinates the implementation of mutual defense
actions pursuant to the MDT,
27
while the SEB focuses on non-traditional
security concerns, such as terrorism, transnational crimes, maritime
security, and natural and man-made disasters.
28
These institutions will be
23
CONSTITUTION, Art. VII, Sec. 18.
24
CONSTITUTION, Art. II, Sec. 3.
25
EDCA, Art. II, par.4.
26
EDCA, Art. IV, par.1.
27
The MDB was created through the 1958 Bohlen-Serrano Exchange of Notes to provide
continuing inter-governmental 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 countries. The creation of the MDB was provided by the Mutual Defense
Treaty between the Philippines and the United States. It is co-chaired by the AFP Chief of
Staff and the US Pacific Command Commander. See
http://www.vfacom.ph/content/article/FAQs.
28
Id. The SEB was created through the 2006 Romulo-Kenney Exchange of Notes 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, natural and man-made disasters, between the appropriate
Consolidated Comment 8 G.R. Nos. 212444, 212426
the venues for consultation and agreement as to the nature, quantity, and
disposition of materiel to be stored in Agreed Locations.
24. Petitioners speculate that the separate agreements under the
EDCA will violate various Philippine laws and operate as a blank check to
broaden the coverage of the EDCA.
29
These speculations cannot be the
basis of a constitutional challenge. In the first place, one has to assume
that these separate agreements will be consistent with the Constitution,
our laws, and international obligations, as is clearly stated in the EDCA.
In the second place, whether these separate agreements will violate
Philippine laws or unlawfully expand the EDCA cannot be determined in
advance. This simply cannot be done because the EDCA has not yet been
implemented.
25. For a case to be considered ripe for adjudication, [i]t is a
prerequisite that something had by then been accomplished or
performedbefore a court may come into the picture.
30
The fact that
the EDCA provides for specific agreements to undertake defined
activities reinforces Philippine sovereignty because consent of the
Philippines is required before these activities are undertaken within its
territory. This arrangement also shows that the EDCA is an implementing
agreement of the VFA, because it follows the framework of the VFA
requiring that any activity be approved by the Philippine Government.
ISSUE
WHETHER THE ENHANCED DEFENSE
COOPERATION AGREEMENT IS UNCONSTITUTIONAL.
SUMMARY OF ARGUMENTS
I. THE EDCA IS AN EXECUTIVE AGREEMENT
ENTERED INTO BY THE PRESIDENT IN THE
PERFORMANCE OF HIS PRIME DUTY TO
DEFEND NATIONAL SECURITY.
Philippine and United States authorities; develop measures and arrangements for enhanced
cooperation in connection therewith, and appropriate common security interests of the two
sovereign countries. The SEB complements the MDB.
29
BAYAN Petition, p. 28-29.
30
Tan v. Macapagal, G.R. Nos. L-34161, 29 February 1972.
Consolidated Comment 9 G.R. Nos. 212444, 212426
A. The President is Constitutionally Mandated
to Promote National Security Interests: The
Presidents Power to Maintain Peace and
Security.
B. Constitutional Law and the Practical
Considerations of this Case Require
Deferential Review of Executive Decisions
over National Security.
C. The MDT, VFA, and EDCA are Security
Agreements.
II. THE EDCA IS AN EXECUTIVE AGREEMENT, AND
THEREFORE DOES NOT REQUIRE SENATE
CONCURRENCE.
A. The EDCA Implements the MDT.
B. The EDCA Implements the VFA.
C. The VFA is the Standing Authority for
Activities Approved by the Philippine
Government Relating to Security Interests of
the Philippines and the United States.
D. The EDCA, as an Implementing Agreement,
Does Not Require Senate Concurrence.
III. ASSORTED ISSUES RAISED BY THE PETITIONS.
A. The MDT Cannot Be Collaterally Attacked;
Its Validity Has Already Been Judicially
Recognized in Lim and Nicolas.
B. The EDCA Does Not Authorize the Entry of
Nuclear Weapons Into the Philippines.
C. The EDCA Does Not Deprive Philippine
Courts of Jurisdiction.
Consolidated Comment 10 G.R. Nos. 212444, 212426
D. The EDCA Does Not Violate Constitutional
Policy and Existing Laws.
DISCUSSION
I.
THE EDCA IS AN EXECUTIVE AGREEMENT ENTERED
INTO BY THE PRESIDENT IN THE PERFORMANCE OF HIS
PRIME DUTY TO DEFEND NATIONAL SECURITY.
A. The President is Constitutionally Mandated to Promote National
Security Interests: The Presidents Power to Maintain Peace and
Security.
26. The President, through the DND, entered into the EDCA to
perform his primary constitutional duty to promote national security
interests. Under Article II, Section 4 of the Constitution, the President, as
head of State and chief representative of government, has the prime duty
to serve and protect the people. The President is the Commander-in-
Chief of the Armed Forces of the Philippines, which is constitutionally
designated as the protector of the people and the State.
31
Article II,
Section 3 of the Constitution provides that [t]he goal [of the Armed
Forces of the Philippines] is to secure the sovereignty of the State and the
integrity of the national territory of the Philippines. The National
Defense Act provides that [t]he national defense policy of the
Philippines is the preservation of the State.
32
These are undisputed
constitutional and statutory grounding.
27. The President entered into the EDCA in the performance of
his highest constitutional duty, because he did so to protect the integrity
of the Philippine State.
33
Under Article I of the EDCA, the goals of
improving interoperability between Philippine and US forces and the
defense capability of the AFP are meant to (1) maintain and develop
additional maritime security [and] maritime domain awareness and (2) to
improve the ability to render humanitarian assistance and disaster relief or
HADR.
31
CONSTITUTION, Art. II, Sec. 3.
32
C.A. No. 1, as amended, Sec. 2.
33
Territory is an integral part of a State. Montevideo Convention on the Rights and Duties
of States, 26 December 1933, Art. 1. 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.
Consolidated Comment 11 G.R. Nos. 212444, 212426
28. Thus, from the Philippine perspective, the objectives of the
EDCA are twofold: (1) externally, to secure the territorial integrity of the
Philippine State and (2) internally, to improve the capability to render
HADR in light of emergencies or disasters that were recently experienced
by the country. Both the external and internal aspects of the EDCA are
meant to advance the national security of the Philippines.
29. National security relates to common defensethe
preservation of the public peace as well as against the internal convulsions
as external attacksthe superintendence of our intercourse, political and
commercial, with foreign countries.
34
National security necessarily
subsumes foreign relations when it involves the sovereignty of a State.
The security of the Philippines is envisioned to be advanced through the
EDCAs objective of strengthen[ing] international and regional
security.
35
30. Authority to Maintain Security and Prevent War. In Marcos v.
Manglapus,
36
the Honorable Court ruled that in making the President
commander-in-chief, the enumeration of powers that follow cannot be
said to exclude the Presidents exercising as Commander-in-Chief powers
short of the calling of the armed forces, or suspending the privilege of the
writ of habeas corpus or declaring martial law, in order to keep the peace,
and maintain public order and security.
37
Thus, the Presidents power as
Commander-in-Chief does not become relevant only during an actual war.
As Commander-in-Chief, it is the Presidents 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.
31. The Honorable Court cannot decide the present case without
considering the international platform of politics in which we currently
find ourselves situated. Recent events within Philippine territory
undoubtedly compromise the security of the Philippines. The Honorable
Court should not render the President helpless or impair his ability to set
up a national security apparatus in the face of clear, present, and verified
reports of activities that endanger the integrity of the Philippine State.
32. 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
34
THE FEDERALIST NO. 23 (Alexander Hamilton). See L. Donohue, The Limits of National
Security, 48 AM. CRIM. L. REV. 1573 (2011), 1576.
35
EDCA, Preamble.
36
G.R. No. 88211, 15 September 1989.
37
Id.
Consolidated Comment 12 G.R. Nos. 212444, 212426
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. The present controversy is also concerned with
such an authority plus the very delicate, plenary and exclusive
power of the President as the sole organ of thegovernment in the
field of international relationsa power which does not require as
basis for its exercise an act of Congress, but which of course, like other
governmental power, must be exercised in subordination to the
applicable provisions of the Constitution.
38
33. We invite the Honorable Court to be mindful of the reality
that geopolitical concerns today involve transboundaries. Thus, the line
between domestic and regional or national and international issues is no
longer as easy to demarcate. Thus, for instance, the enforcement of State
territory is not only achieved through clarity in international norms, but
crucially through tangible security and defense build-up measures
undertaken by states. Advances in technology have made the seas and
oceans a crucial component in defining territorial entitlements.
34. Article I of the EDCA provides that it is meant to address the
AFPs 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.
39
These, among others, are the security and defense
measures that the Philippines needs to achieve a minimum credible
defense to the manifold security concerns in the West Philippine Sea.
35. Article II, Section 7 of the Constitution provides that [t]he
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.
Article XII, Section 2 of the Constitution provides that [t]he State shall
protect the nations marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and preserve its use and enjoyment
exclusively to Filipino citizens. The Honorable Court must allow the
President to protect our maritime entitlements. National security, through
the defense of national territory, invokes the highest duty of the President
and all Filipino citizens under the Constitution.
36. Internal Security through HADR. Another objective of the
EDCA addresses the internal security of the Philippines by improving the
ability to provide HADR, either through joint operations between
38
U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), 320.
39
EDCA, Art. I.
Consolidated Comment 13 G.R. Nos. 212444, 212426
Philippine and US forces or through the AFPs own capacity which is
intended to be developed under the EDCA. The countrys experience
with Typhoon Haiyan last November 2013 has made us acutely aware of
the need to develop HADR capability to provide immediate response to
disaster-stricken areas. Moreover, this experience underscores not only
the fact that disaster response requires more than the immediate rescue of
survivors, but also that grave calamities require international effort.
37. Under the AFP Modernization Act, HADR is a key role of
the AFP, which is mandated to protect the people not only from armed
threats but from the ill effects of life-threatening and destructive
consequences of natural and man-made disasters and calamities, including
typhoons, earthquakes, volcanic eruptions.
40
The EDCA seeks, among
others, to enhance the AFPs HADR capabilities through the availability
of prepositioned materiel.
38. Even as the AFP continues to develop its disaster response
capabilities, the magnitude of some calamities may require response from
the international community. Close coordination and interoperability with
foreign forces, including units of the US, will be critical. For specific
HADR missions such as search and rescue and aid delivery, the capability
to immediately and seamlessly conduct joint operations may spell the
difference between life and death.
B. Constitutional Law and the Practical Considerations of this Case
Require Deferential Review of Executive Decisions Over National
Security.
39. In the Federalist Papers, Alexander Hamilton said that
powers relating to common defense ought to exist without limitation,
because it is impossible to foresee or define the extent and variety of
national exigencies, or the correspondent extent and variety of the
means which may be necessary to satisfy them.
41
While the
Constitution has placed limits on any governmental act by imposing upon
the Judiciary the duty to determine grave abuse of discretion, courts have
invariably maintained a deferential attitude to executive decisions on
matters of national security.
42
40. In any case, the exercise of the authority to uphold national
security has barely any limitations, for the President must be given the
40
Republic Act 7898, Sec. 3(c).
41
Emphasis in the original, supra note 37.
42
David v. Macapagal-Arroyo, G.R. No. 171396, 3 May 2006; IBP v. Zamora, G.R. No. 141284,
15 August 2000; Marcos v. Manglapus, supra note 36.
Consolidated Comment 14 G.R. Nos. 212444, 212426
widest latitude in balancing the nations limited options and calibrating his
responses to ensure their maximum intended effect. In light of the reality
that the nuances of foreign policy and international relations are best left
to agencies and instrumentalities of governmentall of whom under the
control of the Presidentwith institutional capacity to plan and execute
the Presidents national defense policy, it stands to reason that courts
must approach this case with deference to a foreign policy decision
already made.
41. Judicial deference to decisions relating to national security is
also required by the principle of separation of powers. Consistent with
Hamiltons view, norms articulated in a judicial decision may inadvertently
deprive the government of specific and graduated remedies to address
pressing national security concerns, because it is impossible to foresee or
define the extent and variety of national exigencies. By constitutional
design, the Judiciary does not have the institutional capacity to appreciate
the severity and scope of a national security problem and the propriety of
the means to address it.
42. Lest we forget, the Judiciary also has the constitutional duty
to uphold national security and protect national territory in the
performance of its judicial function. The Constitution imposes the duty to
protect and serve the people on the entire government of the
Philippines.
43
The National Defense Act provides that [t]he preservation
of the State is the obligation of every citizen.
44
A necessary part of this
constitutional and statutory duty of the Judiciary is to exercise utmost
deference to the Executive when it undertakes national security measures
to defend the security of the Republic.
C. The MDT, VFA and EDCA are Security Agreements.
43. The MDT, VFA and EDCA are security agreements. They
are meant to promote the common internal and external security interests
of the Philippines and the US. They were entered into by the President in
the performance of his prime duty to uphold the national security of the
Philippines.
44. The MDT provides that the parties desire to
furtherstrengthen their present efforts to collective defense for the
preservation of peace and security pending the development of a more
comprehensive system of regional security in the Pacific Area. Article II
of the MDT states that [i]n order to more effectively achieve the
43
CONSTITUTION, Art. II, Sec. 4.
44
C.A. No. 1, Section 2(a).
Consolidated Comment 15 G.R. Nos. 212444, 212426
objective of [the MDT], the Parties separately and jointly by self-help and
mutual aid will maintain and develop their individual and collective
capacity to resist armed attack. Thus, the MDT does not only
contemplate the defense against an actual armed attack, but the
undertaking of security measures to maintain and developindividual
and collective capacity to resist armed attack.
45. The VFA expressly reaffirms the MDT.
45
While reaffirming
the purposes and principles of the Charter of the United Nations (UN
Charter), the VFA provides that the parties desire to strengthen
international and regional security in the Pacific area and that
cooperation between the US and the Republic of the Philippines
promotes their common security interests.
46
The VFA is meant to allow
activities approved by the Philippine Government relating to individual
and common security interests of the Philippines and the US.
46. The EDCA reaffirms the MDT and the VFA. It reiterates the
purpose of these prior agreements by providing that while the Philippines
and the US reaffirm the purposes and principles of the UN Charter, both
countries desire to strengthen international and regional security. Article
I of the EDCA provides that it is intended to deepen[ ] defense
cooperation between the Parties and maintain[ ] and develop[ ] their
individual and collective capacities, in furtherance of Article II of the
MDT
II.
THE EDCA IS AN EXECUTIVE AGREEMENT, AND
THEREFORE DOES NOT REQUIRE SENATE
CONCURRENCE.
47. Petitioners arguments are anchored on their interpretation of
Article XVIII, Section 25 which, in their belief, either nullifies or limits
the application of the MDT or suspends the operation of the EDCA.
48. The EDCA explicitly provides that it is an implementing
agreement of the MDT and the VFA
Article I
PURPOSE AND SCOPE
1. This Agreement deepens defense cooperation between the
Parties and maintains and develops their individual and collective
capacities, in furtherance of Article II of the MDT, which states that
45
VFA, Preamble.
46
VFA, Preamble.
Consolidated Comment 16 G.R. Nos. 212444, 212426
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.
49. Under Article 31(1) of the Vienna Convention on the Law of
Treaties, [a] treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose.
50. By its own express terms, the EDCA declares itself to be an
implementing agreement of the VFA and the MDT and as such does not
require Senate concurrence to be valid and effective.
47
Thus, it is
difficult to maintain petitioners contrary position because it is
contradicted by the text of the EDCA. The only way petitioners
arguments will make sense is if we reject the plain reading of the language
of the text they seek to impugn.
51. As will be discussed below, the EDCA is nothing more than
an implementing agreement of the MDT and the VFA not only by its
express declaration, but also by its purpose, scope and operative
provisions. In other words, while the EDCA is an important security
agreement, the necessary licenses or authorities for its operative
provisions are found in the general and specific language of either the
MDT or the VFA or both.
A. The EDCA Implements the MDT.
52. In entering into the MDT, the US and the Philippines seek,
among others, to declare publicly and formally their sense of unity and
their common determination to defend themselves against external armed
attack and further strengthen their present efforts to collective defense
for the preservation of peace and security pending the development of a
more comprehensive system of regional security in the Pacific Area.
48
To
achieve these objectives, the MDT provides:
ARTICLE II
In order more effectively to achieve the objective of this Treaty,
the Parties separately and jointly by self-help and mutual aid will
maintain and develop individual and collective capacity to resist armed
attack.
47
CONSTITUTION, Art. VII, Sec. 21.
48
MDT, Preamble.
Consolidated Comment 17 G.R. Nos. 212444, 212426
ARTICLE III
The Parties, through their Foreign Ministers or their deputies,
will consult together from time to time regarding the implementation
of this Treaty and whenever in the opinion of either of them the
territorial integrity, political independence or security of either of the
Parties is threatened by external armed attack in the Pacific.
53. As the core defense relationship between the Philippines and
the US, the MDT seeks the enhancement of the strategic and
technological capabilities of the parties armed forces.
49
The specific
language of Article II above includes acts preparatory to allied defense
operations. The language of the MDT does not limit its application to
situations when either party is already under armed attack. The objective of
the MDT, as stated in Article II, is to enhance the parties capability to
prevent or resist a possible armed attack. The underlying idea behind the
MDT is the concept of mutual defense.
54. This concept of mutual defense is carried over to the EDCA,
the purpose of which is to enhance defense cooperation. The purpose, scope
and operative provisions of the EDCA implement the MDT. Article I of
the EDCA provides that its purpose is the 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.
55. The purposes of the EDCAto [s]upport[ ] the Parties
shared goal of improving interoperability of the Parties forces, and for
the Armed Forces of the Philippines (AFP), [to address its] short-term
capabilities gaps, promoting long-term modernization, and helping
maintain and develop additional maritime security, maritime domain
awareness, and humanitarian assistance and disaster relief capabilities
50