Escolar Documentos
Profissional Documentos
Cultura Documentos
SUPREME COURT
MANILA
EXECUTIVE SECRETARY
PAQUITO OCHOA,
DEPARTMENT OF DEFENSE
SECRETARY VOLTAIRE
GAZMIN, DEPARTMENT OF
FOREIGN AFFAIRS
SECRETARY ALBERT DEL
ROSARIO, JR., DEPARTMENT
OF BUDGET AND
MANAGEMENT SECRETARY
FLORENCIO ABAD,ARMED
FORCES OF THE PHILIPPINES
CHIEF OF STAFF GENERAL
EMMANUEL T. BAUTISTA,
Respondents,
x------------------------------------------------x
1
PETITION FOR CERTIORARI AND PROHIBITION
WITH PRAYER FOR THE ISSUANCE OF A WRIT OF
PROHIBITORY INJUNCTION AND/ OR TEMPORARY
RESTRAINING ORDER
PREFATORY STATEMENT
2
The Senate, led by then Senate President Jovito R.
Salonga, voted 12-11 against the proposed treaty, thus ending
470 years of foreign military presence in the Philippines.
3
resources its rapidly growing economy needs to turn vision
into reality.
4
2. Petitioners pray that the Honorable Court declare
that Public Respondent Defense Secretary committed grave
abuse of discretion amounting to lack or excess of jurisdiction
when he entered into the Enhanced Defense Cooperation
Agreement on behalf of the Philippines, and that the
Honorable Court declare that the Enhanced Defense
Cooperation Agreement is unconstitutional for patently
violating various provisions of the 1987 Constitution and for
being grossly contrary to the national interest.
5
8. Petitioners respectfully submit as ANNEX A a copy
of the “Enhanced Defense Cooperation Agreement” in
compliance with Rule 65 of the 1997 Rules of Civil Procedure.
6
17. All Petitioners may be served with notices, pleadings
and other processes of this Honorable Court through their
counsel, the Roque & Butuyan Law Offices, with address at
1904 Antel Corporate Center, 121 Valero Street, Salcedo
Village, Makati City.
7
Agreement. He may be served with summons and other papers
and processes of this Honorable Court at the DBM, Gen.
Solano St., San Miguel, Manila.
8
the Supreme Court in the case of Bayan vs. Zamora.1. A
second challenge was brought in the case of Sombilon vs.
Romulo2, which was dismissed by the Supreme Court on
February 11, 2009.
29. Eight months later, both Parties held the eighth and
final round of negotiations on the EDCA.
1Bayan, et. al. vs. Executive Secretary, et. al.,G.R. No. 138572, 10 October 2000
Philippine Constitution Association, Inc., et. al. vs. Executive Secretary, et. al., G.R. No.
138587, 10 October 2000Giungona, et. al. vs. Estrada, et. al., G.R. No. 138680, 10
October 2000Integrated Bar of the Philippines, et. al. vs. Estrada, et. al., G.R. No.
138698, 10 October 2000and Salonga, et. al. vs. Executive Secretary, et. al., G.R. No.
138570, 10 October 2000
2Suzette Nicolas y Sombilon vs. Alberto Romulo,et. al., G.R. No. 175888 Salonga vs.
9
implements the policies already agreed [upon].”5 Usec. Batino
concluded that “Thus, the EDCA does not need ratification.”6
5 Id.
6 Id.
7 http://www.gmanetwork.com/news/story/359813/news/nation/dfa-prepared-to-
defend-edca-if-ordered-by-the-supreme-court
10
39. For the same reasons, the commission and
continuance of the acts complained of during the pendency of
this petition will work injustice to Petitioners, and to the
people of the Republic of the Philippines. Petitioners pray for
the exemption from the posting of a bond in view of the nature
of the instant petition.
11
VI. ARGUMENTS
SUBSTANTIVE ISSUES
(GROUNDS FOR THE PETITION)
12
REJECTION OF WAR AS A
NATIONAL POLICY.
13
OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN THEY
SIGNED THE EDCA SINCE THE EDCA IS
CONTRARY TO NATIONAL INTEREST AND
IS IN FACT, HIGHLY DISADVANTAGEOUS
TO IT:
14
EXCESS OF JURISDICTION BECAUSE IN
DOING SO, HE MADE THE PHILIPPINES A
TARGET OF US ENEMIES PURSUANT TO
THE INTERNATIONAL HUMANITARIAN LAW
PROVISION ON ITS GEOGRAPHIC
APPLICATION.
15
OF A PERMANENT NATURE, AND NOT
MERELY TEMPORARY.
VII. DISCUSSIONS
8Guingona vs. Court of Appeals, G.R. No. 125532. July 10, 1998 citing Philippine
Association of Colleges and Universities vs. Secretary of Education, 97 Phil. 806,
810 (1955); and Tan vs. Macapagal, 43 SCRA 678, 680-682, February 29, 1972
and People vs. Vera, 65 Phil. 58, 89 (1937).
9CRUZ, supra note 61, at 23. See also International Longshoremen's and
Warehousemen's Union, Local 37 v. Boyd, 347 US 222 (1954), quoted in ROTUNDA,
supra note 64, at 1026-1027.
16
international agreement and the power of the President as the
head of state in the realm of foreign policy.
17
Regarding the Treatment of United States Armed Forces
Visiting the Philippines (the “VFA”), signed in Manila of the
tenth day of February 1998.
25. EDCA is purportedly aimed at deepening defense
cooperation between the Philippines and the United States of
America “in furtherance of Article II of the MDT, which states
that “the Parties separately and jointly by self-help and mutual
aid will maintain and develop their individual and collective
capacity to resist armed attack,” and within the context of the
VFA.”
18
“An aspect of the "case-or-controversy"
requirement is the requisite of "ripeness." In the
United States, courts are centrally concerned
with whether a case involves uncertain
contingent future events that may not occur as
anticipated, or indeed may not occur at all.
Another approach is the evaluation of the
twofold aspect of ripeness: first, the fitness of
the issues for judicial decision; and second, the
hardship to the parties entailed by withholding
court consideration. In our jurisdiction, the issue
of ripeness is generally treated in terms of
actual injury to the plaintiff. Hence, a question
is ripe for adjudication when the act being
challenged has had a direct adverse effect on
the individual challenging it. An alternative
road to review similarly taken would be to
determine whether an action has already
been accomplished or performed by a
branch of government before the courts
may step in.”13(Emphasis supplied)
19
sustained or will sustain direct injury as a
result" of the act being challenged, and "calls for
more than just a generalized grievance."15
15Id. citing David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160
and Jumamil v. Café, G.R. No. 144570, September 21, 2005, 470 SCRA 475; citing
Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000, 338
SCRA 81.
20
requirement of personal
interest.”18[emphasis supplied]
1991.
24 Philippine International Air Terminals Co., G.R. No.155001, May 5, 2003.
25Defensor-Santiago v. Comelec, G.R. No.127325, March 19, 1997. See KMU v. Garcia,
21
right to life.26 As the Honorable Court held in Solicitor General
v. Metropolitan Manila Authority:
in the Philippines v. Secretary, G.R. No.79310, July 14, 1989; Philippine International
Air Terminals Co., G.R. No.155001, May 5, 2003 (standing), particularly J. Panganiban,
sep.op.
26Botona v. CA, G.R. No. 120650, February 21, 2003.
27 Solicitor-General v. Metropolitan Manila Authority, G.R. No.102782, December 11,
1991.
28 Bayan, et. al. vs. Executive Secretary, et. al.,G.R. No. 138572, 10 October 2000
Philippine Constitution Association, Inc., et. al. vs. Executive Secretary, et. al., G.R. No.
138587, 10 October 2000Giungona, et. al. vs. Estrada, et. al., G.R. No. 138680, 10
October 2000Integrated Bar of the Philippines, et. al. vs. Estrada, et. al., G.R. No.
138698, 10 October 2000and Salonga, et. al. vs. Executive Secretary, et. al., G.R. No.
138570, 10 October 2000
22
SUBSTANTIVE ISSUES
---------------------------------------------
23
attacked, simply because its provisions directly contradict the
peace-oriented 1987 Charter.
“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.”
24
and the Philippines, which include, but are not limited to the
following:
25
state, or in any other manner inconsistent with the
Purposes of the United Nations.”
26
62. As already stated in the preceding section, the MDT
violates the specific exclusionary intents of Art. 51 of the UN
Charter on when and where the right to collective self-defense
may be invoked.
27
69. These two main purposes of the EDCA therefore,
cannot be said to be merely advancing the implementation of
the MDT or the VFA.
Article 1
30Vaugh, Bruce (2007) “US Strategic and Defense Relationships in the Asia-Pacific
Region”. Congressional Research Service.retrieved through http://www.wikileaks.org at
http://wlstorage.net/file/crs/RL33821.pdf on May 9, 2014.
32http://www.rappler.com/thought-leaders/56518-ph-us-enhanced-defense-
28
bilateral arrangements Middle East.
– like those with Signed on the day of
Singapore – for the arrival of US
training, exercises President Barack
and interoperability to Obama for a State
allow for uninterrupted Visit.
forward deployment in
the region.31
31 Id.
33 Article IV, Mutual Defense Treaty of 1951
34 Department of Foreign Affairs Primer on theRP-US VFA retrieved from
http://web.archive.org/web/20070927074626/http://www.dfa.gov.ph/vfa/content/Pri
mer.htm on May 9, 2014.
35 http://www.gov.ph/2014/04/28/qna-on-the-enhanced-defense-cooperation-
agreement/
29
The VFA pertains to the treatment of United States
troops temporarily visiting the Philippines to conduct
bilateral exercises with the Philippines These visits
will be temporary and, as stated above, will not
constitute a permanent stationing of United States
troops on Philippine soil.
30
81. If the VFA was also a furtherance of the MDT, why
then was it in a form of a treaty? Why did the government not
use the same reasoning to enter into an agreement without the
need of Senate concurrence?
31
II. THE PUBLIC RESPONDENT
DEFENSE SECRETARY
COMMITTED GRAVE ABUSE OF
DISCRETION WHEN HE SIGNED
THE EDCA BECAUSE THE EDCA
VIOLATES THE CONSTITUTIONAL
PROHIBITION ON NUCLEAR
WEAPONS IN THE COUNTRY AND
DEPRIVES THE SUPREME COURT
OF ITS CONSTITUTIONAL
PREROGATIVES.
--------------------------------------------------
32
94. The much bandied about provision that purportedly
prevents the entry of nuclear weapons in the Philippines
actually states:
Article IV
33
101. It is clear, upon a closer examination of the EDCA,
that access to the Agreed Locations by Designated Authority is
contingent on “operational safety and security requirements”.
“Article III
Article VI
34
“The parties agree to resolve any dispute
arising under this Agreement exclusively
through consultation between the Parties.
Disputes and other matters subject to
consultation under this Agreement shall
not be referred to any national or
international court, tribunal, or other similar
body, or to any third party for settlement,
unless otherwise agreed by the
Parties.”(emphasis supplied)
35
110. It is a reiteration of the same colossal problems
posed arising from toxic contamination of base environs
caused by untreated waste materiel left by the US armed
forces when they pulled out of the Clark and Subic bases.
111. All these issues are sure to arise under the EDCA.
There is however, little that is actually known with how these
shall be treated, except for this provision which provides even
less clarity than an analogous provision found in the VFA.
-------------------------------------------------
36
113. The Section 7 of Article II of the Constitution
provides,
36 http://www.japantimes.co.jp/news/2014/04/24/national/obama-tells-abe-security-
treaty-covers-senkakus/#.U2muN4GSwVA
37
“ARTICLE IV. Each Party recognizes that
an armed attack in the Pacific area on either of
the Parties would be dangerous to its own
peace and safety and declares that it would act
to meet the common dangers in accordance
with its constitutional processes.”
123. On the other hand, it will only likely increase the ire
of China as seen in Chinese media where the Chinese news
agency, Xinhua has published the following editorial:
37 http://news.xinhuanet.com/english/world/2014-04/28/c_133294852.htm
38
the Philippines and China as the West Philippine Sea is
neither a metropolitan territory, nor islands in the Pacific.
Article III
39
without rental or similar costs. United States
forces shall cover their necessary operational
expenses with respect to their activities at the
Agreed Locations.
“Article V
40
will be paid by US forces. However, there is nothing in the
Article that stands to benefit the Philippines in a way that the
primer released by the government states.
135. At the time of the negotiations for the treaty for the
US Bases in 1991, the US Government offered to pay US$203
million for its continued lease of the Subic Naval base .
“Article III
Article IV
41
139. Further, the HADR equipment only forms a small
part of what the EDCA will allow the US forces to store in the
Philippines. Therefore, the advantage to having HADR
equipment nearby may very minimal.
142. Over the last few years, the US has given more than
$ 7 billion to Pakistan in direct assistance – that is, in funds to
purchase weapons, supplies and equipment, purportedly to
help it fight the Taliban.
42
145. The Center for Public Integrity places Pakistan on
the third spot in its list of top 10 recipients of US military aid
three years after 9/11. The Philippines is not on that list:
Country Total
Israel $9,094,874,000
Egypt $6,025,456,540
Pakistan $4,682,808,397
Jordan $2,670,414,688
Afghanistan $2,663,783,836
Colombia $2,048,565,665
Turkey* $1,324,923,070
Peru $445,825,971
Bolivia $320,682,000
Poland $313,136,119
* The $1 billion grantmade to Turkey through the Economic Support Fund for fiscal
year 2003 was rescinded in 2005.
41The Center for Public Integrity, Collateral Damage: Human Rights and US Military
Aid after 9/1,May 22,2007, available at
http://projects.publicintegrity.org/MilitaryAid/<last visited August 26, 2009>.
43
Country Economic Military Total
Kenya 0.7 0.0 0.7
Colombia 0.5 0.1 0.6
Haiti 0.5 0.0 0.5
150. And the little cash that the Americans allow the
Philippine military to have – as in the case of financial support
for the annual Balikatan exercises –unfortunately end up in
the pockets of some corrupt Filipino generals, if the revelations
of Navy Lt. Senior Grade Mary Nancy Gadian are to be
believed.44
International, available at
http://www.transparencyreporting.net/index.php?option=com_content&view=article&id
=187:why-ex-navy-officer-gadian-spoke-out&catid=44:stories&Itemid=94<last visited
May 13, 2014>
44
151. A comparative table of analogous or similar Status
of Forces Agreements (SOFAs) the US has entered into with
some of its other allies - Iraq, Japan and South Korea – will
show in great detail how our own negotiators for the EDCA
have placed national interest at such a great disadvantage:
45
and Security, the use used and the
Article 6: Use of of facilities and areas Government of the
Agreed Facilities and in Japan. Republic of Korea is
Areas 4. (a) When facilities so advised, the
2. In accordance with and areas are Government of the
this Agreement, Iraq temporarily not being Republic of Korea
authorizes the United used by the United may make, or permit
States States armed forces, nationals of the
Forces to exercise the Government of Republic of Korea to
within the agreed Japan may make, or make, interim use of
facilities and areas all permit Japanese such facilities and
rights and powers nationals to make, areas provided that it
that may be interim use of such is agreed between the
necessary to facilities and areas two Governments
establish, use, provided that it is through the Joint
maintain, and secure agreed between the Committee that such
such agreed two Governments use would not be
facilities and areas. through the Joint harmful to the
The Parties shall Committee that such purposes for which
coordinate and use would not be the facilities and
cooperate regarding harmful to the areas are normally
exercising these purposes used by the United
rights and powers in for which the facilities States armed forces.
the agreed facilities and areas are
and areas of joint normally used by the
use. United States armed
forces.
(b) With respect to
facilities and areas
which are to be used
by United States
armed forces for
limited periods of
time, the Joint
Committee shall
specify in the
agreements covering
such facilities and
areas the extent to
which the provisions
of this Agreement
shall apply.
46
free of any debts and purposes of this United States shall be
financial Agreement, and the returned to
burdens. United States agrees the Republic of Korea
7. The United States to keep the needs for under such
Forces shall return to facilities and areas conditions as may be
the Government of under continual agreed through the
Iraq the observation with a Joint Committee
agreed facilities and view toward such whenever they are no
areas that have Return. longer needed for the
heritage, moral, and purposes of this
political Article IV: Agreement and the
significance and any 1. The United States United States agrees
non-relocatable is not obliged, when it to keep the needs for
structures and returns facilities and facilities and areas
assemblies on them areas to Japan on the under continual
that expiration of this observation with a
it had built, installed, Agreement or at an view toward such
or established, earlier date, to restore return.
according to the facilities and
mechanisms, areas to the condition Article IV: Facilities
priorities, in which they were at and Areas - Return of
and a time period as the time they became Facilities
mutually agreed by available to the 1. The Government of
the Joint Committee, United States armed the United States is
free of any forces, or to not obliged, when it
debts or financial compensate Japan in returns
burdens. lieu of such facilities and areas to
8. The United States restoration. the Government of
Forces shall return 2. Japan is not the Republic of Korea
the agreed facilities obliged to make any on the
and areas to the compensation to the expiration of this
Government of Iraq United States for any Agreement or at an
upon the expiration improvements made earlier date, to restore
or termination of this in the facilities and the facilities
Agreement, or areas or for the and areas to the
earlier as mutually buildings or condition in which
agreed by the Parties, structures left they were at the time
or when such thereon on the they became
facilities are no expiration of this available to the
longer required as Agreement or the United States armed
determined by the earlier return of the forces, or to
JMOCC, free of any facilities and areas. compensate 'the
debts or financial Government of the
burdens. Republic of Korea in
lieu of such
restoration.
2. The Government of
the Republic, of Korea
is not obliged to make
any compensation to
the Government of
the United States for
any improvements
made in facilities and
areas or for the
buildings and
structures left
thereon on the
expiration of this
Agreement or the
earlier return of the
facilities and areas.
Storage of Allowed Allowed Allowed
Military/Defens
e Equipment
47
Public Utilities Not explicitly stated Article VII: Article VI: Utilities
The United States and Services
armed forces shall 1. The United States
have the use of all armed forces shall
public utilities have the use of all
and services utilities and
belonging to, or services which are
controlled or owned, controlled or
regulated by the regulated by the
Government Government of the
of Japan, and shall Republic of Korea or
enjoy priorities in local administrative
such use, under subdivisions thereof.
conditions no less The term
favorable than those "utilities and services"
that may be shall include, but not
applicable from time be limited to,
to time to the transportation
ministries and and communications
agencies of the facilities and systems,
Government of Japan. electricity, -gas,
water, steam,
heat, light, power,
and sewage disposal.
The use of utilities
and services as
provided herein shall
not prejudice the
right of the United
States to operate
military
transportation,
communication power
and such other
utilities and
services deemed
necessary for the
operations of the
United States armed
forces. This right
shall not be exercised
in a manner
inconsistent with the
operation by the
Government of the
Republic of Korea of
its utilities and
services.
2. The use of such
utilities and services
by the United States
shall be in
accordance with
priorities, conditions,
and rates or tariffs no
less favorable
than those accorded
any other user.
48
serve to highlight the clear disadvantage that the Philippines
has with regard to the EDCA.
49
THE PHILIPPINES A TARGET OF
US ENEMIES PURSUANT TO THE
INTERNATIONAL HUMANITARIAN
LAW PROVISION ON ITS
GEOGRAPHIC APPLICATION.
--------------------------------------------------
http://www.crimesofwar.org/a-z-guide/legitimate-military-targets/
50
163. This is because US military facilities located in the
Philippines can be considered to effectively contribute to US
military action.
“Article III
Article IV
51
165. These may be considered as legitimate targets of US
enemies. Therefore, it puts Philippine territories, particularly,
the “Agreed Locations” in harm’s way if the US enters into an
international armed conflict even if the potential US conflict is
not geographically in the Philippines.
--------------------------------------------------
52
167. In the first place, the EDCA is a treaty and not
merely an executive agreement. Therefore, it must have the
concurrence of the Senate of the Philippines before it can be
operable.
53
174. Considering this, we see the wisdom of the framers
of the Constitution when they included in the 1987 Philippine
Constitution requirements for certain agreements to be in the
form of treaties. This is so that these agreements will not only
be considered by the Executive department, but the Legislative
as well.
50For an account of the provenance of this provision, see JOAQUIN BERNAS, S.J. THE
1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 1212-1216 (1996).
51G.R. No. 138570, Oct. 10, 2000.
54
concurred in by at least two-thirds of all
Members of the Senate.
“Article III
55
the EDCA to the Philippine Senate for its concurrence, in
accordance with Section 25, Article XVIII of the Constitution.
56
C. There is greater reason to
consider EDCA a treaty as it is of
a permanent nature, and not
merely temporary.
“Article III
57
consistent with the requirements and
standards of both Parties.
Article V
Article XII
58
troops brought about by the VFA has resulted in a continued
presence of US forces in Mindanao since 2002. Thus, the term
“rotational” cannot be used to deny that the EDCA implies a
permanent and not a temporary arrangement. On the
contrary, that the US troops will be rotating in and out of the
country means a constant, permanent presence.
55 Missouri, Kansas & Texas Railway Company of Texas vs. Clay May, 194 US 267
59
APPLICATION FOR THE ISSUANCE OF A
WRIT OF PRELIMINARY PROHIBITORY INJUNCTION
AND/OR A TEMPORARY RESTRAINING ORDER (TRO)
60
PRAYER
61
ROQUE & BUTUYAN LAW OFFICES
Counsel for Petitioners
1904 Antel Corporate Center
121 Valero Street, Salcedo Village
Makati City
Email: mail@roquebutuyan.com
Tel. Nos. 887-4445/887-3894;
Fax No: 887-3893
By:
JOEL R. BUTUYAN
Roll No. 36911
PTR No. 4264495/Jan 30, 2014/Makati
IBP No. 01742/Lifetime
MCLE Compliance No. IV-0011417
(issued on Jan 11, 2013)
ROMEL R. BAGARES
Roll No. 49518
PTR No. 4264492/Jan 30, 2014/Makati
IBP No. 961461/Jan 29, 2014/Socsargen
MCLE Compliance No. IV-017519
(issued on Jan 25, 2013)
GEEPEE A. GONZALES
Roll No. 59686
PTR No. 4264494/Jan 39, 2014/Makati
IBP No. 961252/Jan 27, 2014/
Oriental Mindoro
MCLE Compliance No. IV-0005346
(issued on Mar 28, 2012)
62
ETHEL C. AVISADO
Roll No. 56254
PTR No. 4281935/Feb 12, 2014/Makati
IBP No. 961251/Jan 27, 2014/Davao
MCLE Compliance No. IV-019563
(issued on May 2, 2013)
Copy furnished:
Secretary VolataireGazmin
Department of National Defense
DND Building, Segundo Ave.
Camp General Emilio Aguinaldo
Quezon City
EXPLANATION
ETHEL C. AVISADO
63