Feb 222013
 

Supreme Court Petition on the Visiting Forces Agreement (1999)

Republic of the Philippines
SUPREME COURT
Manila

En Banc

JOVITO R.SALONGA, WIGBERTO E. TANADA, ZENAIDA QUEZON AVANCENA, ROLAND G. SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM (MABINI),

Petitioners,

For: Certiorari and Prohibition with Application for Temporary Restraining Order

and/or Preliminary Injunction G.R. No. 138698

-VERSUS-

THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON and all other persons acting under their control, supervision, direction, and instructions in relation to the Visiting Forces Agreement(VFA),

Respondents.

PETITION

PETITIONERS, by counsel, respectfully state:

By way of prefatory statement/1

The essence of this petition is for this Honorable Court to uphold the rule of law and the supremacy of the Constitution by declaring the Visiting Forces Agreement or VFA , for short, –which has just been “ratified” by the Senate and declared “in force and effect”–void and unconstitutional. This, of course, can also be done by merely holding that the questioned ratification is void for being in violation of the Constitution.

This is not the first time this question confronts this Tribunal.

On 30 April 1999, almost on the eve of the debates, three senators came to this Court to ask this Honorable Court, in a special civil action for certiorari and mandamus,/2 to issue a temporary restraining order. As the matter was still to be debated in open session of the Senate, a unanimous Court wisely chose not to restrain the debates by dismissing, on May 4, 1999, the petition on the ground of prematurity. Indeed, some Senators could yet change their minds.

What was then “premature” has become, with the end of the debates and a Senate vote of 18 to 5 in favor of the VFA, a most timely petition.

However, there are several threshold questions.

An initial question is whether Petitioners have the locus standi to question the constitutionality of the VFA./3 The burden of the cases on locus standi is that where the matter is of transcendental public interest, especially where there are alleged violations of the Constitution, ordinary taxpayers, concerned citizens and people’s organizations as well as Non Government Organizations(NGOs) have the legal standing to sue. This matter has been aptly discussed in a number of cases, notably in Kilosbayan v. Morato/4 , and in the recent case of Chavez v. PCGG./5 . Thus, petitioners take the liberty of merely quoting what has been said by this Court on the point, “(t)ranscendental public interest requires that the substantive issues be met head on and decided on the merits, rather than skirted or deflected by procedural matters.”

The second question is whether it might be better for the Supreme Court to consider this whole controversy a political question and thereby evade having to decide a ticklish question. This , petitioners submit, can no longer be done under the 1987 Constitution, as long as there exists a grave abuse of discretion, amounting to lack or excess of jurisdiction, on the part of one department of the government.

As explained by Chief Justice Roberto Concepcion,/6 “the judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on the lmatters of this nature.”/7

The third and probably the most important threshold question is whether a treaty with the United States should conform to the Constitution and if so, whether the Senate, in ratifying the VFA, complied with the basic law of the land. The accepted view is that a treaty prevails over an ordinary statute. But where there is an apparent conflict between a particular treaty and the Constitution, the Court will exert every effort to reconcile the apparent conflict. Where the conflict, however, is irreconcilable, the Constitution must of necessity prevail over the treaty. Indeed, the 1987 Constitution specifically empowers the Supreme Court to declare a treaty unconstitutional./8

But the question posed earlier may not be accurate. For the question assumes that both the Philippines and the U.S. explicitly recognize the VFA as a treaty. The Philippine side recognizes it as a treaty with one qualification–namely, that when it concerns military bases, troops and facilities, it must be “recognized as a treaty by the other contracting State.”/9

Article XVIII, section 25 provides:

“Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, FOREIGN MILITARY BASES, TROOPS, OR FACILITIES SHALL NOT BE ALLOWED IN THE PHILIPPINES EXCEPT UNDER A TREATY DULY CONCURRED IN BY THE SENATE…AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE.”

From the viewpoint of United States constitutional law, the VFA is undoubtedly a mere executive agreement. It is supposedly the practice of American officials that similar agreements, whether in the form of Visiting Forces Agreements(VFAs) or Status of Forces Agreements(SFAs), do not go to the United States Senate for purposes of ratification; they are merely signed by a State Department official or an ambassador in
charge.

In the Philippines’ case, the VFA was signed on behalf of the United States by Ambassador Thomas Hubbard. It is contended that this should be sufficient, the clear implication is that this is the way it is done by the United States — the Philippines cannot impose its wishes on the United States as the country must comply with what the United States wants. Except for one point: the U.S. troops, vessels and aircraft are supposed to be VISITING forces in the Philippines.Logically and as a matter of simple common sense, the visitors take into account what the host country expects the visitors to do, even if only as a matter of courtesy. Otherwise, they may be regarded as no better than invading, not visiting, forces.

It may be asked why Philippine policy-makers and legislators had to go through an exhaustive, exhausting debate, marked by demonstrations, street protests and even threats of “people’s war” by some elements, if the US did not consider the VFA sufficiently important to merit action by the United States President, “with the advice and consent of two-thirds of the US Senate.” A semantic device used by some American officials, such as the current ambassador– with obvious help from high executive officials and from majority of the incumbent senators– is to say that under international law, abou7t which there is no dispute, the agreement is binding whether it is an executive agreement or a treaty. Hence, the executive agreement may be recognized” or “considered” and ” accepted” as a treaty by the United States government. That semantic device may not do any longer, under the 1987 Constitution.

In March 1947, when the original Military Bases Agreement was ratified by the Philippine Senate, without a single dissenting vote, apparently no one bothered to ask why the ratification process was one-sided. That, it has been said, was the mood of the time, shsortly after the end of World War II and the “liberation of the Philippines from the Imperial Japanese Forces”–blind, unquestioning confidence and trust in the United States.

In September 1991, the Senate decided by a vote of 12-11, which was more than enough since only 8 negative votes were actually needed, to reject the RP-US Bases Treaty and dismantle the US bases. Hence, it
was not considered necessary to consider, much less belabor, the question since the Senate promptly ended “around 400 years of foreign military presence in the Philippines.”

But now, the question is no longer moot, either way.

The Senate which ratified by the required 2/3 vote the VFA last 27 May 1999 has been asked the question during the debates– why not insist on equality with the United States at least insofar as the ratification process of a deliberately ambiguous and one-sided agreement is concerned?

With due respect, this Honorable Court is being asked the same question in terms of another question –did the Senate gravely abuse its discretion when it “ratified” but ignored Section25 of Article XVIII of the Constitution? Be it noted that under Senate REsolution No. 443, the Senate disposed of the VFA as if it were an ordinary international agreement under Section 21, Article VII of the Constitution. Said Section provides: ” 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.”

Petitioners submit and maintain that both history and logic support the proposition that without the recognition of the US President and the US Senate, the ratification process is void and unconstitutional and, at best, incomplete.

In May 5, 1999 issue of TODAY, Father Joaquin Bernas, S.J., explains the historical context of Section 25, as follows:

“When Article 18, Section 25 was discussed by the Constitutional Commission in 1986, the historical context was that the former US-Philippine Bases Agreement had been ratified by the Philippine Senate, but it was never consented by the United States Senate. In the exchanges that took place, the clear intention of the commission was that this aberration must not be repeated. The recognition by the US must be by the President of the United States with the advice and consent of the US Senate.

Was this an attempt by the commission to tell the US how it should enter into the agreement? No, it was not. RATHER, IT WAS AN INSTRUCTION TO PHILIPPINE OFFICIALS NOT TO ACCEPT ANYTHING LESS THAN THE SIGNATURE OF THE US PRESIDENT WITH THE ADVICE AND CONSENT OF THE US SENATE. CALL IT NATIONAL PRIDE; BUT THE INTENTION WAS TO ACHIEVE PARITY OF APPROACH BETWEEN TWO SOVEREIGNS WHERE ONE IS NOT THE LACKEY OF THE OTHER.

Mr. Hubbard is not wrong in saying that the US can consider the VFA a treaty even if not entered into by the US President with the advice and consent of the US Senate. He is obviously using “treaty” in the broad international law sense. But the writers of the present Constitution were referring to a treaty in the narrow US constitutional law sense: namely, an international agreement entered into with the advice and consent of two-thirds of the US Senate.

I repeat: THIS IS NOT AN IMPOSITION OF THE US GOVERNMENT. US OFFICIALS ARE FREE TO DECIDE WHETHER TO SUBMIT AN INTERNATIONAL AGREEMENT TO THE SENATE FOR ADVICE AND CONSENT. BUT OUR CONSTITUTIONAL PROVISION IS AN IMPOSITION OF OUR PUBLIC OFFICIALS. THEY MAY CONSENT TO A SECTION 25 TREATY WITH THE UNITED STATES ONLY IF THE US SENATE SHOULD HONOR IT WITH ITS ADVICE AND CONSENT. TO ACCEPT LESS IS TO CONSENT TO A SLUR.”

Worse, to accept less than the explicit recognition by the United States of the VFA as a treaty, as prescribed by the Constitution, amounts to an amendment of the Constitution without going through the difficult, rigorous process of amending the fundamental law of the land.

1. NATURE OF THE ACTION

1.1. This is a special civil action for CERTIORARI under Rule 65, section 1 of the 1997 Rules on Civil Procedure in relation to Article VIII, section 5(1) and Article VIII, section 1, paragraph 2 of the 1987 Constitution to ANNUL FOR BEING UNCONSTITUTIONAL THE AGREEMENT BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA REGARDING THE TREATMENT OF UNITED STATES ARMED FORCES VISITING THE PHILIPPINES /10 which was ratified by the President of the Philippines on 5 October 1998 and concurred in by the Senate on 27 May 1999. It is respectfully submitted that the VFA, on its face, violates the following provisions of the 1987 Constitution: (1) Article XVIII, section 25; (2) Article VIII, section 2; (3) Article VIII, section 5(5); (4) Article II, section 8; (5) Article VI, section 28(4); (6) Article III, section 1; (&) Article II, section 7; and (8) Article II, section 8.;

Also sought to be ANNULLED FOR BEING IN GRAVE ABUSE OF DISCRETION are the: (a) respondent Secretary of Foreign Affairs’ acts of entering into the VFA and his causing it to enter into force, through the Exchange of Notes dated 1 June 1999 with the United States and (b) the Philippine Senate’s concurrence/11 in the President’s ratification of the VFA.

1.2 This is also a special civil action for PROHIBITION under Rule 65, section 2 of the 1997 Rules on Civil Procedure in relation to Article VIII, section 5(1) of the 1987 Constitution to ENJOIN THE IMPLEMENTATION OF THE VFA by respondents Executive Secretary, Secretary of Foreign Affairs, Secretary of National Defense and all other public officers and private persons who may be acting under their control, supervision and instruction in relation to the implementation of the VFA.

1.3 Finally, this is also an application for a TEMPORARY RESTRAINING ORDER(TR)) and/or a WRIT OF PRELIMINARY INJUNCTION TO RESTRAIN AND ENJOIN respondents from performing any acts to implement the provisions of the VFA.

1.4 The acts against which this petition are directed are executory and have caused substantial injury to petitioners/ rights and will continue to cause substantial and irreparable injury, unless the reliefs prayed for herein are granted. Petitioners have no other speed and adequate remedy to address the substntial injury to petitioners’ rights save the reliefs sought in this petition.

2. MATERIAL ANTECEDENTS

2.1 On 18 July 1997, representatives of the United States and the Philippines met 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 VFA and the issues of concern that each side would bring to the negotiating table. Negotiations by both panels on the VFA led to a consolidated draft text, which in turn led to a final series of conferences and negotiations.

2.2. The final round of negotiations was held in Manila on 12 to 13 January 1998. After then President Fidel V. Ramos approved the positive recommendation of the Cabinet’s Cluster E, respondent Secretary of Foreign Affairs and the United States Ambassador Thomas Hubbard signed the VFA in Manila on 10 February 1998.

2.3. On 5 October 1998, the incumbent President Joseph Ejercito Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA./12

2.4. On 6 October 1998, the President, through respondent Executive Secretary, officially transmitted to the Senate of the Philippines the INSTRUMENT OF RATIFICATION and the document, more informally known as the VFA ; in his message to the Senate, the President formally requested the Senate’s concurrence to the VFA under Article VII, Section 21 of the 1987 Constitution.

2.5. The VFA was referred by respondent Senate President Fernan to the Committees on Foreign Relations and National Defense and Security, chaired by respondents Senators Ople and Biazon respectively, for their joint study and deliberation before submission for action to the Senate, as a whole, for possible concurrence.

2.6. Thereafter, several public hearings were conducted. In these public hearings, the constitutional and legal arguments against the Senate’s concurrence under Article VII, section 21 were raised and brought to the attention of the Senate. The threshold issue of the applicability of Article XVIII, section 25 and not Article VII, section 21 was repeatedly stressed and emphasized by experts in constitutional law, international law as well as by other concerned Filipinos and organizations./13

2.7. On 3 May 1999, the Committees on Foreign Relations and National Defense and Security submitted to the Senate a “Joint Report” on the VFA recommending to the Senate, inter alia, the concurrence in its ratification.

2.8. Thereafter, the Joint Report was submitted to the Senate for deliberations as Senate Resolution No. 443./14 Debates then ensured on Senate Resolution No. 443.

2.9. On 27 May 1999, Senate Resolution No. 443 recommending that the Senate concur in the VFA’s ratification was approved by 18 /15 of the 23 members of the Senate. With 18 votes in favor of the VFA, the 2/3 vote requirement under Article XVIII, section 25 ofthe 1987 Constitution was obtained.

2.10. On 1 June 1999 , the VFA officially entered into force after an Exchange of Notes between respondent Secretary of Foreign Affairs and the United States Ambassador Thomas Hubbard pursuant to Article IX of the VFA.

3. THE PARTIES

3.1. PETITIONER —

3.1.1. JOVITO R. SALONGA is a Filipino Citizen, taxpayer, member of the Philippine bar in good standing, former Senator of the Republic and Senate President; he may be served with pertinent processes at Room 508, State Center II, Ortigas Avenue, Mandaluyong City;

3.1.2. WIGBERTO E. TANADA is a Filipino citizen, taxpayer and duly-elected and qualified Representative of the 4th Congressional District of Quezon to the Philippine House of Representatives; he may be served with pertinent processes at his Office at the House of Representatives, Batasan Pambansa Complex, Quezon City;

3.1.3. ZENAIDA QUEZON AVANCENA is a Filipino citizen and taxpayer; she may be served with pertinent processes at 45 Gilmore Avenue, New Manila, Quezon City;

3.1.4. ROLAND G. SIMBULAN is a Filipino citizen and taxpayer; he may be served with pertinent processes at 31-B Evergreen Drive, Capitol Green Village, Tandang Sora, Quezon City;

3.1.5. PABLITO V. SANIDAD is a Filipino citizen, taxpayer, a member of the Philippine bar in good standing and National Chairperson of the Free Legal Assistance Group(FLAG); he may be served with pertinent processes at c/o FREE LEGAL ASSISTANCE GROUP(FLAG), National Capitol Region, 2nd Floor, Transorient Maritime Building, 66 Timog Avenue, Quezon City;

3.1.6. MA. SOCORRO I. DIOKNO is a Filipino citizen and taxpayer; she may be served with pertinent processes at c/o FREE LEGAL ASSISTANCE GROUP(FLAG), National Capitol Region, 2nd Floor, Transorient Maritim Building, 66 Timog Avenue, Quezon City;

3.1.7. AGAPITO A. AQUINO is a Filipino citizen, taxpayer and duly-elected and qualified Representative of the 2nd Congressional District of Makati to the Philippine House of Representatives; he may be served with pertinent processes at his Office at the House of Representatives, Batasan Pambansa Complex, Quezon City.

3.1.8. JOKER P. ARROYO is a Filipino citizen, taxpayer and duly-elected and qualified Representative of the 1st Congressional District of Makati to the Philippine House of Representatives; he may be served with pertinent processes at his Office at the House of Representatives, Batasan Pambansa Complex, Quezon City;

3.1.9. FRANCISCO C. RIVERA JR. is a Filipino citizen and taxpayer; he may be served with pertinent processes at 156 Buenmar Subdivision, Baranggay Manggahan, Pasig City;

3.1.10. RENE A.V. SAGUISAG is a Filipino citizen, taxpayer and a member of the Philippine bar in good standing; he may be served with pertinent processes at 4043 Bigasan Street, Palanan, Makati City;

3.1.11. MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,INTEGRITY AND NATIONALISM, INC.(MABINI) is a non-stock, non-profit organization of human rights lawyers and advocates; it may be served with pertinent processes at 4043 Bigasan Street, Legaspi Village, Makati City;

3.1.12. KILOSBAYAN is an independent, non-stock,non-profit, ethics-oriented and ecumenical people’s organuization committed to pursue and protect people’s legitimate and collective aspirations; it may be served with pertienent processes at Room 508, State Center II, Ortigas Avenue, Mandaluyong City;

To facilitate service, PETITIONERS SALONGA, TANADA, AQUINO, ARROYO, SAGUISAG, KILOSBAYAN AND MABINI MAY ALSO BE SERVED WITH NOTICES AND PERTINENT PROCESSES THROUGH THEIR UNDERSIGNED COUNSEL AT 6th FLOOR, STRATA 200 Building, Emerald Avenue, Ortigas Center, Pasig City. Similarly, PETITIONERS QUEZON AVANCENA, SIMBULAN, SANIDAD, DIOKNO AND RIVERA JR. MAY BE SERVED WITH NOTICES AND PERTINENT PROCESSES THROUGH THEIR UNDERSIGNED COUNSEL AT c/o FREE LEGAL ASSISTANCE GROUP(FLAG), 2nd Floor, Transorient Maritime Building, 66 Timog Avenue, Quezon City.

3.2. RESPONDENT –

3.2.1. EXECUTIVE SECRETARY is the cabinet member and public officer with the power to coordinate and harmonize operations of the different executive departments under the Office of the President. He may be served with pertinent processes at his official station at the Office of the Executive Secretary, New Executive Building, Malacanang Palace Compound, Manila.

3.2.2. SECRETARY OF FOREIGN AFFAIRS is the cabinet member and public officer who heads the Department of Foreign Affairs and who, in such capacity, entered into the VFA for the Philippines; he may be served with pertinent processes at his official station at the Department of Foreign Affairs, Roxas Boulevard, Manila.

3.2.3. SECRETARY OF NATIONAL DEFENSE is the cabinet member and civilian public officer with control and supervision over the Armed Forces of the Philippines; he may be served with pertinent processes at his official station at the Department of National Defense, Camp Emilio Aguinaldo, Cubao, Quezon City.

3.2.4. SENATOR MARCELO B. FERNAN is sued in his official capacity as Senator and Presiding Officer of the Philippine Senate, the entity that concurred in the President’s ratification of the VFA; he may be served with pertinent processes at the Office of the Senate President at the Senate of the Philippines, GSIS Building, CCP Complex, Roxas Boulevard, Manila.

3.2.5. SENATOR BLAS F. OPLE is sued in his official capacity as Senator, Chairperson of the Senate Committee on Foreign Relations and one of the principal sponsors of Senate Resolution No. 443, embodying the Joint Report of the Senate Committees on Foreign Relations and National Defense and Security, calling for the Senate to concur in the President’s ratification of the VFA; he may be served with pertinent processes at his office at the Senate of the Philippines, GSIS Building, CCP Complex, Roxas Boulevard, Manila;

3.2.6. SENATOR RODOLFO BIAZON is sued in his official capacity as Senator, Chairperson of the Senate Committee on National Defense and Security and one of the principal sponsors of Senate Resolution No. 443, embodying the Joint Report of the Senate Committees on Foreign Relations and National Defense and Security, calling for the Senate to concur in the President’s ratification of the VFA; he may be served with pertinent processes at his office at the Senat of the Philippines, GSIS Building, CCP Complex, Roxas Boulevard, Manila;

To afford complete relief, ALL PUBLIC OFFICERS AND OTHER PERSONS ACTING UNDER THE CONTROL, SUPERVISION, DIRECTION AND INSTRUCTIONS OF ALL THE RESPONDENTS NAMED ABOVE are considered impleaded herein.

4. PETITIONERS’ STANDING TO SUE

4.1 PETITIONERS ARE DISCRIMINATED AGAINST BY THE OPERATION OF THE VFA AND , THUS, HAVE THE REQUISITE STANDING TO SUE.

4.1.1. Petitioners Jovito R. Salonga, Wigberto E. Tanada, Zenaida Quezon Avancena, Roland G. Simbulan, Pablito V. Sanidad, Ma. Socorro Diokno, Agapito A. Aquino, Joker P. Arroyo, Francisco C. Rivera, Jr. and Rene A.V. Saguisag are all Filipino citizens and taxpayers who have a vested right to equal protection of the laws under Article III, section I of the 1987 Constitution.

4.1.2. Petitioners KILOSBAYAN and MABINI are duly-registered non-stock and non-profit organizations whose members are all Filipino citizens and taxpayers and have vested rights to the equal protection of the laws.

4.1.3. As shall be demonstrated below, the VFA violates blatantly the constitutional guarantee of equal protection of the laws by favoring the visiting forces from the United States because of its utterly discriminatory and grossly one-sided provisions. The VFA treats petitioners (except KILOSBAYAN and MABINI), who are all ilipino citizens as second-class citizens in their own country by extending to members of the visiting forces rights, privileges and benefits not enjoyed by Filipinos. For this reason, petitioners respectfully submit that they have sufficient standing to challenge the VFA.

4.2. PETITIONERS TANADA, AQUINO AND ARROYO, AS MEMBERS OF CONGRESS, HAVE STANDING TO CHALLENGE A USURPATION OF LEGISLATIVE POWER.

4.2.1. Petitioners Wigberto R.Tanada, Agapito A. Aquino and Joker P. Arroyo are also duly elected and qualified members of the House of Representatives, representing the 4th District of Quezon and the 2nd and 1st Districts of Makati City, respectively.

4.2.2. As duly-elected and qualified representatives, they have sufficient standing to bring suit to challenge the Senate’s lack of power to grant the various tax exemptions under the VFA without the concurrence of the House of Representatives in violation of Article VI, section 28(4). They also have sufficient standing to challenge the Senate’s lack of power to alter the criminal jurisdiction of Philippine courts under the VFA without the concurrnce of the House of Representatives in violation of Article VIII, section 2./16

4.2.3. For this reason, petitioners Tanada, Aquino and Arroyo respectfully submit that they have sufficient standing to bring suit as duly-elected and qualified members of Congress to challenge the Senate’s concurrence where it amounts to an arrogation of the shared legislative power provided under the Constitution.

4.3. STANDING IS A PROCEDURAL AND TECHNICAL REQUIREMENT WHICH THIS HONORABLE COURT HAS HAD MANY OCCASIONS TO TREAT LIBERALLY ESPECIALLY WHERE THE ISSUES RAISED ARE “OF TRANSCENDENTAL IMPORTANCE.”/17

4.3.1. Even assuming without accepting that petitioners do not have the requisite standing to sue, petitioners respectfully submit that the alleged “lack of standing” should not stand in the way of this Honorable Court has sufficient discretion to liberalize and relax this requirement.

4.3.2. This Honorable Court has had occasion to emphasize that ” (a) PARTY’S STANDING BEFORE THIS COURT IS A PROCEDURAL TECHNICALITY WHICH IT MAY, IN THE EXERCISE OF ITS DISCRETION, SET ASIDE IN VIEW OF THE IMPORTANCE OF THE ISSUES RAISED. “/18 Thus, this Honorable Court has relaxed the standing requirement where the issues raised in the petition are of “transcendental importance to the public.”/19 Also, this Honorable Court has allowed petitions filed by ordinary taxpayers, members of Congress, associations and non-profit organizations — similar to petitioners herein — to challenge the constitutionality of various laws, acts, decisions, rulings or orders of various government agencies or instrumentalities./20

4.3.3. Petitioners respectfully submit that the issues raised in this petition are of “transcendental importance to the public” in view of the VFA’s blatant violation of the constitutional guarantee of equal protection of the laws as well as the manifest violations of other constitutional guarantees, as for instance, the existence of foreign troops on Philippine soil without a treaty which is also recognized as a treaty by the other contracting State,/21 prohibition against entry of nuclear weapons, /22 civilian supremacy over the military,/23 and the assertion of national sovereignty, national interest, territorial integrity and the right to self-determination in the State’s conduct of an independent foreign policy./24

4.3.4. The operation of the VFA will cause direct and substantial injury to petitioners’ rights and all other Filipinos similarly vested with the rights guaranteed by the 1987 Constitution. The right not be treated as second-class citizens in one’s own country under the guarantee of equal protection of the laws will be directly violated by the implementation of the VFA.

4.3.5. Consequently, even assuming without accepting that petitioners have not shown a direct and substantial injury arising from the implementation of the VFA, petitioners respectfully submit that the “transcendental importance to the public” of a resolution on the various issues raised in this petition justifies a liberal application of the rules on standing.

5. JUSTICIABILITY OF THE ISSUES PRESENTED

5.1. THIS PETITION CHALLENGES THE VFA FOR VIOLATING THE EQUAL PROTECTION CLAUSE AS IT UNDULY DISCRIMINATES AGAINST PETITIONERS IN FAVOR OF THE AMERICAN VISITING FORCES. Thus, the petition raises a controversy involving “rights which are legally demandable and enforceable”/25 and is, thyus, a justiciable controversy falling squarely within the scope of judicial power.

5.2. THIS PETITION ALSO CHALLENGES THE OFFICIAL ACTS OF RESPONDENT SECRETARY OF FOREIGN AFFAIRS AND THE PHILIPPINE SENATE IN ENTERING INTO THE VFA AND CONCURRING IN ITS RATIFICATION, RESPECTIVELY, AS HAVING BEEN PERFORMED IN GRAVE ABUSE OF DISCRETION/26 BECAUSE OF THE REFUSAL OF THE UNITED STATES TO CONSIDER THE VFA ALSO A TREATY IN VIOLATION OF ARTICLE XVIII, SECTION 25 OF THE 1987 CONSTITUTION. In Tanada vs. Angara,/27 this Honorable Court rules squarely that where grave abuse of discretion is alleged to have attended an official act of any branch or instrumentality of the government, as for instance the Senate, then the controversy is justiciable./28

6. TIMELINESS OF PETITION AND RIPENESS OF ISSUES

6.1. Petitioners respectfully submit that this petition is not only timely and seasonably filed as it falls within the sixty(60) day period provided by law/29 but that the issues presented are ripe for resolution.

6.2. The validity of the VFA per se is challenged in this petition. The VFA has already entered into force on 1 June 1999 and the first exercises are scheduled to be conducted in February of the year 2000, as confirmed /30 by respondent Secretary of Foreign Affairs and United States Ambassador Thomas Hubbard.

6.3. All indications show that respondents are already undertaking the necessary preparatory acts to enforce the VFA; consequently, the issue of whether the VFA should be enforced, considering the various constitutional infirmities alleged and the substantial injury to petitioners, is ripe for adjudication.

7. THE NEED FOR THE SUPREME COURT

TO ADJUDICATE ON THE CONSTITUTIONAL QUESTIONS

7.1. Petitioners respectfully submit that adjudication of the Constitutional question is unavoidable as THERE IS NO OTHER MEANS FOR THIS HONORABLE COURT TO DETERMINE THE VALIDITY OF :(1) THE VFA ITSELF, (2) RESPONDENT SIAZON’S ENTERING INTO THE VFA AND (3) THE SENATE’S CONCURRENCE IN THE PRESIDENT’S RATIFICATION OF THE VFA, WITHOUT DECIDING ON THE FOLLOWING CONSTITUTIONAL ISSUES:

(1) Whether or not the VFA was validlty entered into and concurred in by respsondent Secretary of Foreign Affairs and the Senate in view of the United States’ refusal to consider it a treaty, as required by Article XVIII, section 25 of the 1987 Constitution;

(2) Whether or not the VFA violates petitioners’ rights to the equal protection of the laws as guaranteed by Article III, section 1 of the 1987 Constitution;

(3) Whether or not the VFA violates the constitutional guarantee of freedom from nuclear weapons within its territory under Article II, section 8 of the 1987 Constitution;

(4) Whether or not the Senate’s grant to American visiting forces of tax exemptions, immunity from Philippine criminal jurisdiction, exemption from the operation of lawful court processes and custody, and immunity from tort claims violates Article VI, section 28(4), Article VIII, section 2, Article VIII, section 5(5) and Article III, section 1;

7.2. The indispensability of resolving the foregoing constitutional issues makes these issues the very LIS MOTA of the controversy. Petitioners respectfully syubmit that there is a compelling – actually indispensable – need for this Honorable Court to exercise its power of judicial review.

8. REASONS WARRANTING RELIEFS

A. CERTIORARI AND PROHIBITION

8.1. THE VISITING FORCES AGREEMENT (VFA) IS VOID BECAUSE:

(A) IT BLATANTLY DISCRIMINATES AGAINST PETITIONERS, IN VIOLATION OF ARTICLE III, SECTION 1 OF THE 1987 CONSTITUTION.

(B) IT ALLOWS FOREIGN TROOPS ON PHILIPPINE SOIL WITHOUT A TREATY VALIDLY CONCURRED IN BY THE PHILIPPINE SENATE AND CONSIDERED ALSO AS A TREATY BY THE UNITED STATES, IN VIOLATION OF ARTICLE XVIII, SECTION 25 OF THE 1987 CONSTITUTION.

(C) IT ALLOWS THE VIOLATION OF THE PROHIBITION AGAINST NUCLEAR WEAPONS UNDER ARTICLE II, SECTION 8 OF THE 1987 CONSTITUTION.

(D) IT USURPS JUDICIAL POWER, IN VIOLATION OF ARTICLE VIII, SECTION 2 AND ARTICLE VIII, SECTION 5(5) OF THE 1987 CONSTITUTION.

(E) IT ALLOWS THE DELEGATION OF SOVEREIGN PREROGATIVES TO FOREIGN MILITARY AUTHORITIES, IN VIOLATION OF ARTICLE II, SECTION 3 OF THE 1987 CONSTITUTION.

(F) IT RESULTS IN A DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS, IN VIOLATION OF ARTICLE III, SECTION 1 OF THE 1987 CONSTITUTION.

(G) IT GRANTS TAX EXEMPTIONS WITHOUT THE CONCURRENCE OF BOTH HOUSES OF CONGRESS, IN VIOLATION OF ARTICLE VII , SECTION 28(4) OF THE 1987CONSTITUTION.

B. RE: RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

8.2. UNLESS RESTRAINED BY THIS HONORABLE COURT, RESPONDENTS WILL ENFORCE THE PROVISIONS OF AN UNCONSTITUTIONAL AND VOID TREATY AND WILL CAUSE PETITIONERS TO SUFFER GRAVE AND IRREPARABLE INJURY.

9. DISCUSSION

THE VFA IS VOID BECAUSE IT ALLOWS FOREIGN TROOPS ON PHILIPPINE SOIL WITHOUT A TREATY VALIDLY CONCURRED IN BY THE PHILIPPINE SENATE AND CONSIDERED ALSO AS A TREATY BY THE UNITED STATES, IN VIOLATION OF ARTICLE XVIII, SECTION 25 OF THE 1987 CONSTITUTION.

9.1. The VFA, in essence, provides for the conditions and situations under which the United States armed forces and personnel may visit and stay in the Philippines. To determine the validity of the VFA, therefore, the threshold question that confronts this Honorable Court is the constitutional basis for allowing foreign troops on Philippine soil.

9.2. Petitioners respectfully submit that the requirements of the 1987 Constitution on the existence of foreign troops on Philippine soil are provided in Article XVIII, section 25, which states that:

“Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, FOREIGN MILITARY BASES, TROOPS, OR FACILITIES SHALL NOT BE ALLOWED IN THE PHILIPPINES EXCEPT UNDER A TREATY DULY CONCURRED IN BY THE SENATE and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE.”

It is respectfully submitted that the foregoing provision is the constitutional standard which the VFA must meet.

9.3. This constitutional standard binds respondent Secretary of Foreign Affairs and the Senate, in their respective acts in relation to the VFA. Thus, respondent Secretary, in entering into the VFA, must ensure that the requirements of Article XVIII, section 25 are met; and in similar fashion, the Senate, in its concurrence to the VFA’s ratification.

9.4. Contrary to the position taken by the Executive Branch and the Senate, the duties of respondent Secretary of Foreign Affairs and the Senate in relation to the VFA ARE NOT GOVERNED BY THE GENERAL PROVISIONS ON TREATIES found in ARTICLE VII, SECTION 21, which states that:

“Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.”

PETITIONERS RESPECTFULLY SUBMIT THAT THE GOVERNING PROVISION IS THAT FOUND IN ARTICLE XVIII, SECTION 25.

9.5. Article VII, section 21 governs the process of concurrence involving treaties in general while Article XVIII, section 25 is particularly applicable to a treaty that allows the existence of foreign military bases, troops and facilities on Philippine soil after the expiration of the Military Bases Agreement of 1947.

It is immaterial that the VFA is purportedly for the stationing of troops on a temporary basis because the 1987 Constitution does not distinguish between the temporary or permanent stay of foreign troops.

Also, it may not be argued that Article XVIII, section 25 refers to “bases, troops or facilities” collectively; the use of the word “or” makes it patent that bases, troops or facilities are not referred to collectively. While “bases”, which would imply a tenure of relative permanency, would automatically mean “troops and facilities”; “troops” or “facilities” may exist even without bases. In any case, whether referring to “bases , troops or facilities”, a treaty duly concurred in by the Philippine Senate is require under Philippine law where the treaty must also be considered to be a treaty by the other contracting State.

9.6. The intent of the framers of the 1987 Constitution was clearly to subject any agreement which would allow foreign bases, troops and facilities, after the expiration of the 1991 Military Bases Agreement to the requirement that the other contracting State consider it also a treaty.

9.7. The remarks of Fr. Joaquin Bernas, SJ, a Constitutional Commissioner, during the deliberations on this matter are instructive:

FR. BERNAS.xxx

“Third, on the last phrase, “AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE”, WE ENTER INTO A TREATY AND WE WANT THE OTHER CONTRACTING PARTY TO RESPECT THAT DOCUMENT AS A DOCUMENT POSSESSING FORCE IN THE SAME WAY THAT WE RESPECT IT.”

“The present situation we have is that the bases agreement is a treaty as far as we are concerned, but it is only an executive agreement as far as the United States is concerned, because the treaty process was never completed in the United States because the agreement was not ratified by the Senate.”

“So, for these reasons, I oppose the deletion of this section, because, first of all, as I said, it does not prevent renegotiation. Second, it respects the sovereignty of our people and the people will be in a better position to judge whether to accept the treaty or not, because then they will be voting not just on an abstraction but they will be voting after examination of the terms of the treaty negotiated by our government. And third, THE REQUIREMENT THAT IT BE RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING NATION PLACES US ON THE SAME LEVEL AS ANY OTHER CONTRACTING PARTY.”/31

In a latter part of the debate, Fr. Bernas once again affirmed that: “because it is only the United States that would have the possibility of being allowed to have treaties here, then WE WOULD HAVE TO REQUIRE THAT THE SENATE OF THE UNITED STATES CONCUR IN THE TREATY BECAUSE UNDER AMERICAN CONSTITUTIONAL LAW, THERE MUST BE CONCURRENCE ON THE PART OF THE SENATE OF THE UNITED STATES TO CONCLUDE TREATIES.”/32 And making it very clear that concurrence could not be had without complying with the requirement that the other party consider it a treaty, Fr.Bernas states that:

“In other words, WHEN THE EXECUTIVE DEPARTMENT ENTERS INTO NEGOTIATIONS WITH THE OTHER CONTRACTING NATION OR CONTRACTING STATE, WE WOULD HAVE TO SAY THAT UNDER OUR LAW FOR THIS PURPOSE, THESE ARE THE REQUIREMENTS. SO THEY WOULD HAVE TO BE PREPARED TO ACCEPT THAT. Hence, even before our people could ratify it, the other party could ratify it ahead, but for as long as our people have not ratified it, it does not bind us. Similarly, OUR PEOPLE COULD RATIFY IT AHEAD OF THE UNITED STATES SENATE, FOR EXAMPLE, BUT FOR AS LONG AS IT IS NOT ACCEPTED BY THE UNITED STATES SENATE, IT DOES NOT BIND US.”/33

9.8. Consequently, WHEN THE PRESIDENT TRANSMITTED THE VFA TO THE SENATE FOR ITS CONCURRENCE, THE DUTY REPOSED ON THE SENATE WAS NOT SIMPLY THE MECHANICAL ACT OF CONCURRENCE or rejection of the President’s ratification under Article VII, section 21. Under Article XVIII, section 25; THE SENATE WAS REPOSED WITH THE FOLLOWING POSITIVE DUTIES: (1) TO ASCERTAIN IF THE VFA WAS A TREATY REQUIRING SENATE CONCURRENCE AND (2) TO ASCERTAIN IF THE OTHER CONTRACTING STATE, IN THIS CASE THE UNITED STATES, CONSIDERED OR WILL CONSIDER THE VFA A TREATY. Failure to perform both duties results in a flawed and unconstitutional concurrence by the Senate. Where the other contracting State refuses to consider the document a treaty pursuant to Article XVIII, section 25, then THE SENATE’S DUTY IS NOT TO CONCUR BUT TO EITHER: (a) REJECT OUTRIGHT THE RATIFICATION OF THE TREATY OR (b) WITHHOLD CONCURRENCE UNTIL THE CONSTITUTIONAL STANDARD THAT THE OTHER CONTRACTING STATE ALSO CONSIDERS THE DOCUMENT UNDER CONSIDERATION A TREATY IS MET./34

9.9. Under the Constitution, for the VFA to be valid, therefore, it must be: (a) in the form of a treaty duly concurred in by the Philippine Senate, and (b) recognized also as a treaty the the United States, which is the other contracting State. Moreover, the requirements of Article XVIII, section 25, required the Executive Branch, before it enteed into the VFA, and the Philippine Senate, before it concurred to the VFA, to ensure that the United States considers the VFA also as a treaty. In the absence of a treaty that is recognized as such by both contracting States, no foreign troops may be allowed on Philippine soil and the Senate’s act of concurring in such a treaty is unconstitutional and void.

9.10. THE UNITED STATES DOES NOT CONSIDER THE VFA A TREATY BUT SIMPLY AN EXECUTIVE AGREEMENT. This is its official position communicated by its Ambassador Thomas Hubbard. THE UNITED STATES’ REFUSAL TO CONSIDER THE VFA A TREATY, AS REQUIRED BY THE PHILIPPINE CONSTITUTION, VOIDS THE VFA AS IT BLATANTLY VIOLATES ARTICLE XVIII, SECTION 25 OF THE 1987 CONSTITUTION. MOREOVER, IT BARRED RESPONDENT SECRETARY OF FOREIGN AFFAIRS FROM ENTERING INTO A TREATY AND THE SENATE FROM VALIDLY GIVING ITS CONCURRENCE TO THE VFA AS THIS WOULD RESULT IN THE UNCONSTITUTIONAL PRESENCE OF FOREIGN MILITARY TROOPS ON PHILIPPINE SOIL. Clearly, when respondent Secretary of Foreign Affairs’ entered into the VFA and when the Senate concurred in its ratification, without requiring that the United States consider the VFA a treaty, both acted with grave abuse of discretion amounting to excess of jurisdiction. In the absence of a valid concurrence by the Senate, the VFA is itself invalid, or at best, inoperative.

THE VFA IS VOID BECAUSE IT BLATANTLY DISCRIMINATES AGAINST THE PETITIONERS, IN VIOLATION OF ARTICLE III, SECTION 1 OF THE 1987 CONSTITUTION.

9.11. The VFA is void on its face because it is grossly discriminatory and manifestly one-sided in favor of the American visiting forces and against the petitioners and all Filipino citizens similarly situated. Its provisions violate the guarantee of equal protection of the laws under Article III, section 1 of the 1987 Constitution and its net effect is to treat petitioners and all Filipino citizens as second-class citizens in their own country.

9.12. The following provisions highlight the grossly unequal and manifestly discriminatory nature of the VFA:

A. CRIMINAL JURISDICTION; EXEMPTION FROM CUSTODY; ONE YEAR BAR

9.13. The VFA deprives Philippine courts of custody over members of the visiting forces in cases where Philippine courts exercise concurrent jurisdiction, custody being lodged with United States military authorities from commission of the offense until completion of all judicial procedings./35 The only undertaking the United States military authorities makes under the VFA is to make these personnel available to Philippine courts, upon request by the latter. The VFA, however, relieves the United States of this obligation if the proceedings are not completed within one(1)year./36

9.14. This provision is grossly discriminatory and highly arbitrary. On its face, it gives special treatment to erring members of the visiting forces who may violate Philippine law. It extends to American visiting forces a privilege that the Philippines does not even extend to its own citizens.

9.15. The exemption from custody is a benefit that Philippine courts do not extend to Filipino citizens. All persons within the country are subject to the reach of judicial processes, including the processes which call for the court to take physical custody of a person such as a warrant of arrest or a commitment order. Article V of the VFA changes this rule in favor of the American visiting forces.

9.15.1. The VFA ensures that A PHILIPPINE COURT CANNOT ARREST OR DETAIN MEMBERS OF THE VISITING FORCES FOR THE COMMISSION OF A CRIME FALLING UNDER ITS JURISDICTION AS IT LODGES CUSTODY OVER THE PERSON OF THE OFFENDER WITH THE UNITED STATES MILITARY AUTHORITIES. Filipinos are not extended this exemption.

9.15.2. Under the VFA, a Philippine court trying a member of the visiting forces would not be at liberty to subject the accused to its processes. It would be at the mercy of the United States military authorities as the person charged would be in the custody of the unspecified “United States military authorities” over whom the Philippine courts would have no control.

9.15.3. Under existing law and procedure, Filipino citizens who are charged with crime are not extended this guarantee by the courts. Consequently, where the VFA guarantees this to American visiting forces, it is grossly violative of equal protection.

9.15.4. Concretely, a Filipino and a member of the visiting forces charged with a non-bailable offense, for instance rape, would be treated differently by Philippine courts. The Filipino would be subject to all the court processes; thus, he may be arrested and detained, his house searched, his papers seized, and his liberty curtailed by a Philippine court. The American member of the visiting forces would be subject to none of these; he may not be arrested pursuant to any valid warrant of arrest issued by the court, his person and papers may not be searched pursuant to any valid search warrant issued by the court and he may not be confined anywhere else except the place chosen the United States military authorities.

9.15.5. There is no reasonable difference between the two situations except that one offender is a Filipino while the other is American and the special treatment given to the latter arises only because the VFA allows it.

9.16. The special treatment allowed by the one-year time bar is also highly discriminatory because a Philippine court will be forced to give undue priority and attention to trials involving members of the visiting forces, to the detriment of the right to speedy trial of Filipino offenders.

9.16.1. This is because Article V, section 6 of the VFA relieves the United States military authorities of any obligations to take custody over these erring personnel and to make them available to Philippine authorities if the proceedings are not completed within one(1) year.

9.16.2.Thus, a Philippine court must complete all criminal proceedings against members of the visiting forces charged with crimes within one91) year or face the consequence of relieving the United States of all its obligations to take custody of these erring personnel and make them available to the courts. This gives special treatment to erring members of the visiting forces charged with the same crimes as Filipino offenders because the courts will be forced to give priority to cases involving the members of the visiting forces and deprive Filipino offenders of the same right.

9.17. The special treatment also effectively makes it impossible for Philippine courts determine the guilt of an erring member of the American visiting forces as all that the accused needs to do would be to elevate legal and/or constitutional issues before the Supreme Court to delay the proceedings. The VFA deducts from the one-year period the time needed to appeal and delay caused by failure of the United States to arrange for the presence of the accused, despite notice, but it does not deduct from the period the time it takes to raise constitutional or legal issues before any appellate court. Moreover, the VFA does not impose a similar period on the appelate courts to decide.

B. EXEMPTION FROM VISA AND PASSPORT REQUIREMENTS

9.18. The VFA provides that United States military personnel may enter and depart the Philippines without need of presenting their passport and need for a visa; they need only present, if demanded, identification cards issued by the appropriate United States authority and the corresponding authority to trave. / 37 It further provides that United States civilian personnel shall be exempt from visa requirements but may, only on demand, need to present valid passports upon entry and departure. / 38

9.19.The exemptions from passport and visa requirements upon entering and departing the Philippines that the VFA gives to the American visiting forces is patently discriminatory and arbitrary. There is no valid justification for not requiring the American visiting forces to present valid passports and secure visas from Philippine authorities upon entering and departing the Philippines.

9.20. It must be stressed that Filipino citizens are not exempt from these requirements when leaving their own country. Philippine diplomatic officials, for instance, are required to secure a separate diplomatic passport and a visa before they can enter and depart the place to which he has been posted. Even military officers leaving the Philippines and entering the United States are required to presentl their valid passports and secure visas to enter the United States. Thus, the exceptional treatment given to the American visiting forces cannot be justified and is utterly discriminatory and violative of equal protection.

C. NO AUTHORITY TO BOARD ANY VISITING VESSEL OR AIRCRAFT

9.21. Under the VFA, no Filipino citizen, regardless of rank or station, may board a military aircraft or vessel in the Philippines in connection with the unspecified “activities” it allows. Even for purposes of enforcing Philippine health regulations and ensuring the general welfare of the citizenry from communicable and contagious diseases, it is only the commanding officer of the military aircraft or vessel who shall present a declaration of health, and if required, to conduct a quarantine inspection and certify that the aircraft or vessel is free from quarantinable diseases./39

9.22. The discrimination is patent from the provision itself. The VFA exempts the American aircrafts and vessels from inspection by Philippine health authorities but subjects Filipino aircraft and vessels to the same inspection. There is no reasonable distinction between an American aircraft and vessel and a Filipino aircraft and vessel, for purposes of inspection for quarantinable diseases; there is , thus, no basis for the exceptional treatment given.

D. DUTY FREE IMPORTATION AND EXPORTATION

9.23. The VFA allows the American visiting forces to import into or acquire in the Philippines equipment, materials, supplies and other property free of all Philippine duties, taxes and other similar charges./40 The exemption also extends to the importation and exportation of reasonable quantities of personnel baggage, personal effects and other property for the personal use of United States personnel./41

9.24. Once again, there is no compelling basis to grant exemptions from taxes, duties and similar charges insofar as the property, equipment and materials that the American visiting forces may import into or acquire in the Philippines. The operation of this provision discriminates against Filipinos who acquire property in the country and are heavily taxed. Thus, the Commanding Officer sof the visiting forces may import into or purchase in the Philippines a luxury vehicle and not be subjected to taxes and other duties while a Filipino who imports into or purchases a luxury vehicle in the Philippines will definitely be subjected to taxes and duties.

9.25. Quite patently, the VFA allows for special treatment without reasonable basis. Its provisions are not only grossly discriminatory but also absolutely insulting to Filipinos who find themselves on the receiving end of special treatment given to foreigners in their own soil by Philippine courts. The VFA treats Filipinos as second-class citizens in their own country as it exalts and lavishes exceptional treatment on the American visiting forces. It is fundamentally repugnant to the guarantee of equal protection under the 1987 Constitution and is, by
that token, unconstitutional and void.

THE VFA IS VOID BECAUSE IT ALLOWS THE VIOLATION OF THE PROHIBITION AGAINST NUCLEAR WEAPONS UNDER ARTICLE II, SEC.8 OF THE 1987 CONSTITUTION

9.26. THE VFA IS ABSOLUTELY SILENT ON COMPLIANCE BY THE UNITED STATES MILITARY PERSONNEL WITH THE CONSTITUTIONAL PROHIBITION AGAINST NUCLEAR WEAPONS WITHIN PHILIPPINE TERRITORY./42 The closest approximation of lip service to this constitutional declaration of State policy in Article II which provides that:

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.”

9.27. The VFA does not require a declaration by the United States visiting aircraft and vessels that they are free from nuclear weapons. Neither does the VFA require prior inspection by Philippine authorities of the nuclear capability and status of the visiting vessels and aircrafts. On the contrary, the VFA specifically prohibits any Filipino from entering any American aircraft or vessel./43

9.28. The guarantee of freedom from nuclear weapons under Article II, section 8 is a self-executory provision; it is a simple declaration of the nuclear-free status of the Philippines. Thus, any provision of law or treaty that threatens to change the status quo carries a heavy burden of invalidity.

9.29. The VFA fails to ensure the nuclear-free policy of the Philippines; on the contrary, it even facilitates and allows the circumvention of the nuclear-free policy by disallowing any inspections by Filipino authorities of any entering aircraft or vessel. On its face, it is void for failing to ensure the freedom from nuclear weapons under the 1987 Constitution.

9.30. So too, the Senate’s concurrence is void for grave abuse of discretion. By allowing an inherently inequitable and oppressive situation where Philippine authorities are rendered inutile to monitor, let alone demand, compliance with the constitutional prohibition against the entry of nuclear weapons within its territory, the Senate abdicated its duty to ensure that the VFA is consistent with the Constitution, the law and public policy; it , thus, acted in grave abuse of discretion when it concurred in the ratification of the VFA.

THE VFA IS VOID BECAUSE IT USURPS JUDICIAL POWER, IN VIOLATION OF ARTICLE VIII, SECTION 2 AND ARTICLE VIII, SECTION 5(5) OF THE 1987 CONSTITUTION.

9.31. The VFA modifies the jurisdiction of Philippine courts over criminal offenses committed in the Philippines by members of visiting forces when it: (a) confers criminal jurisdiction on United States Military authorities within the Philippines and makes the same concurrent with Philippine courts, /44 and (b) removes from Philippine courts criminal jurisdiction over particular offenses committed by United States personnel present in the Philippines pursuant to the VFA./45

9.32. THIS RESULTS IN A DEPRIVATION OF CRIMINAL JURISDICTION IN VIOLATION OF ARTICLE VIII, SECTION 2 OF THE 1987 CONSTITUTION; moreover, it effectively grants blanket immunity to members of visiting forces for criminal offenses committed within the country; finally, it also violates the public policy that militates against agreements that oust Philippine courts of jurisdiction.

9.33. Article VIII, section 2 of the 1987 Constitution provides that:

“Sec. 2. CONGRESS SHALL HAVE THE POWER TO DEFINE, PRESCRIBE AND APPORTION THE JURISDICTION OF THE VARIOUS COURTS but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.”

The provision is clear and straightforward. ONLY CONGRESS, i.e. , THE HOUSE OF REPRESENTATIVES AND THE SENATE, MAY “DEFINE, PRESCRIBE AND APPORTION” JURISDICTION.

9.34. By depriving Philippine courts of criminal jurisdiction, the VFA usurps this prerogative, which properly belongs to Congress. THE POWER TO DEFINE, PRESCRIBE AND APPORTION — WHICH NECESSARILY INCLUDES THE POWER TO DIMINISH OR REMOVE ALTOGETHER–JURISDICTION OF COURTS IS A SHARED POWER OF BOTH CHAMBERS OF CONGRESS.

9.35. Consequently, the Executive Branch cannot, by treaty, redefine the jurisdiction of courts; neither can the SENATE ACT ALONE WHERE THE EFFECT OF THE LEADERSHIP OF ITS ACTION IS TO DEPRIVE THE EXISTING CRIMINAL JURISDICTION OF PHILIPPINE COURTS AND TO VEST JURISDICTION OTHERWISE ENJOYED BY PHILIPPINE COURTS IN ‘UNITED STATES MILITARY AUTHORITIES.”/46

9.36. THE EXECUTIVE BRANCH MAY NOT, PURSUANT TO ITS POWER TO ENTER INTO TREATIES, USURP THE POWER TO DEFINE AND PRESCRIBE THE JURISDICTION OF COURTS WHICH THE CONSTITUTION LODGES IN CONGRESS. NEITHER CAN THE SENATE, IN THE GUISE OF CONCURRING IN THE RATIFICATION OF A TREATY, ALTER, MODIFY OR DIMINISH THE EXISTING JURISDICTION OF COURTS ACTING ALONE AND WITHOUT THE CONCURRENCE OF THE HOUSE OF REPRESENTATIVES.

9.37. Moreover, the power to define jurisdiction under Article VIII, section 2 cannot be exercised in such a way as to deprive Philippine courts of criminal jurisdiction while, at the same time, effectively conferring blanket immunity from criminal prosecution for virtually all offenses committed by members of visiting forces.

9.37.1. While it is true that “the Philippines, being a sovereign nation, has jurisdiction over all offenses committed within its territory, (and that) it may, by treaty or by agreement, consent that the United States or any other foreign nation, shall exercise jurisdiction over certain offenses committed within certain provisions of said territory”, /47 as in the case of the abrogated Military Bases Agreement of 1947, this rule is certainly not without parameters and exceptions.

9.37.2. The general rule on granting immunities from prosecution for American military personnel in the Philippines was set forth in SHAUF V. COURT OF APPEALS, /48, viz:

“1. The rule that a State may not be sued without its consent now expressed in Article XVI, section 3 of the 1987 Constitution, is one of the generally-accepted principles of international law that we have adopted as part of the law of our land under Article II, section 2. This latter provision merely reiterates a policy earlier embodied in the 1935 and 1973 Constitutions and also intended to manifest our resolve to abide by the rules of the international community.”

“While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. THE RULE IS THAT IF THE JUDGMENT AGAINST SUCH OFFICIALS WILL REQUIRE THE STATE ITSELF TO PERFORM AN AFFIRMATIVE ACT TO SATISFY THE SAME, SUCH AS THE APPROPRIATION OF THE AMOUNT NEEDED TO PAY THE DAMAGES AWARDED AGAINST THEM, THE SUIT MUST BE REGARDED AS AGAINST THE STATE ITSELF ALTHOUGH IT HAS NOT BEEN FORMALLY IMPLEADED. It must be noted, however, that THE RULE IS NOT SO ALL-ENCOMPASSING AS TO BE APPLICABLE UNDER ALL CIRCUMSTANCES.”

“IT IS A DIFFERENT MATTER WHERE THE PUBLIC OFFICIAL IS MADE TO ACCOUNT IN HIS CAPACITY AS SUCH FOR ACTS CONTRARY TO LAW AND INJURIOUS TO THE RIGHTS OF PLAINTIFF…’Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or a suit in equity against a State officer or the director of a State department on the ground that, while claiming to act for the State, he violates or invades the personal and property rights of the plaintiff under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the State may not be sued without its consent.’ The rationale for this ruling is that THE DOCTRINE OF STATE IMMUNITY CANNOT BE USED AS AN INSTRUMENT FOR PERPETUATING AN INJUSTICE.”

xxx

“The afore cited authorities are clear on the matter. They state that THE DOCTRINE OF IMMUNITY FROM SUIT WILL NOT APPLY AND MAY NOT BE INVOKED WHERE THE PUBLIC OFFICIAL IS SUED IN HIS PRIVATE AND PERSONAL CAPACITY AS AN ORDINARY CITIZEN. THE CLOAK OF PROTECTION AFFORDED THE OFFICERS AND AGENTS OF THE GOVERNMENT IS REMOVED THE MOMENT THEY ARE SUED IN THEIR INDIVIDUAL CAPACITY. THIS SITUATION USUALLY ARISES WHERE THE PUBLIC OFFICIAL ACTS WITHOUT AUTHORITY OR IN EXCESS OF THE POWERS VESTED IN HIM. It is a well-settled principle of law that A PUBLIC OFFICIAL MAY BE LIABLE IN HIS PERSONAL PRIVATE CAPACITY FOR WHATEVER DAMAGE HE MAY HAVE CAUSED BY HIS ACT DONE WITH MALICE AND IN BAD FAITH, OR BEYOND THE SCOPE OF HIS AUTHORITY OR JURISDICTION.”

“The agents and officials of the United States armed forces stationed in Clark Air Base are no exception to this rule.”

9.37.3. In UNITED STATES OF AMERICA V. GUINTO, /49 this Honorable Court reiterated the rule that it is only when the sovereign State is asked to perform an affirmative act to satisfy a judgment that the doctrine of non-suability of a sovereign State arises; also, this Honorable Court reiterated therein the exceptions to this general rule. Too, in UNITED STATES OF AMERICA v. REYES,/50 this Honorable Court reiterated the exception to the rule against non-suability for personal and private acts performed pursuant to official functions.

9.37.4. In WYLIE V RARANG, /51 this Honorable Court emphatically stated that THE EXCEPTION TO NON-SUABILITY APPLIES EVEN FOR CRIMINAL AND TORTIOUS ACTS OF AMERICAN NAVAL OFFICERS WHILE DISCHARGING THEIR OFFICIAL FUNCTIONS pursuant to the 1947 Military Bases Agreement, viz:

“It is to be noted,however, that petitioners were sued in their personal capacities for their alleged tortuous acts in publishing a libelous article.”

“The question, therefore arises — ARE AMERICAN NAVAL OFFICERS WHO COMMIT A CRIME OR TORTUOUS ACT WHILE DISCHARGING OFFICIAL FUNCTIONS STILL COVERED BY THE PRINCIPLE OF STATE IMMUNITY FROM SUIT? PURSUING THE QUESTION FURTHER, DOES THE GRANT OF RIGHTS, POWER AND AUTHORITY TO THE UNITED STATES UNDER THE RP-US BASES TREATY COVER IMMUNITY OF ITS OFFICERS FROM CRIMES AND TORTS? OUR ANSWER IS NO.”

“KILLING A PERSON IN COLD BLOOD WHILE ON PATROL DUTY, RUNNING OVER A CHILD WHILE DRIVING WITH RECKLESS IMPRUDENCE ON AN OFFICIAL TRIP, OR SLANDERING A PERSON DURING OFFICE HOURS COULD NOT POSSIBLY BE COVERED BY THE IMMUNITY AGREEMENT. OUR LAWS AND, WE PRESUME, THOSE OF THE UNITED STATES DO NOT ALLOW THE COMMISSION OF CRIMES IN THE NAME OF OFFICIAL DUTY.”/52

9.38. Thus, while a treaty or agreement, such as the VFA, may reiterate, by incorporation, the generally accepted principle of international law of immunity from suit of a sovereign State or its agents while acting in official capacity, /53 the immunity does not extend to a sovereign State’s agents automatically as it is not part of the generally accepted principles of international law. Immunity on the part of the sovereign State’s agents must be granted specifically.

9.39. Moreover, THE IMMUNITY GIVEN BY THE VFA IS NOT THE SAME AS DIPLOMATIC IMMUNITY WHICH STATES EXTEND TO DIPLOMATIC AGENTS OF ANOTHER SOVEREIGN STATE, BASED ON GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW AS WELL AS ON COMITY. It is not pretended that the members of the visiting forces who will enter the Philippines under the VFA are diplomatic agents; consequently, the generally accepted principle of international law pertaining to sovereign immunity of a State’s diplomatic agents cannot be claimed as justification for the immunity effectively granted by the VFA.

9.40. Thus, while this Honorable Court’s dictum in MIQUIABAS V. PHILIPPINE RYUKUS COMMAND /54 appears to allow the Philippines to confer immunity from suit, by treaty or international agreement, in favor of foreign military personnel, SUBSEQUENT DECISIONS, such as GUINTO, REYES AND WYLIE hold that THE GRANT OF IMMUNITY MAY NOT EXTEND TO CRIMINAL, TORIOUS, OR INJURIOUS ACTS PERFORMED WITH MALICE AND IN BAD FAITH EVEN IF PERFORMED IN THE NAME OF OFFICIAL DUTY./55

9.41. For this reason, Article V of the VFA which deprives Philippine courts of criminal jurisdiction on the mere presentation of an “official duty” certificate by the American military commander /56 is contrary to public policy, inconsistent with controlling jurisprudence and absolutely beyond the Senate’s power to allow. The jurisdiction of courts, particularly in criminal cases, is a matter of public policy imbued with great public interest. In private commercial agreements, the trend of juristic thought is to disallow stipulations that tend to oust Philippine courts of jurisdiction. Petitioners respectfully submit that the same rule should apply, and with greater reason, to an agreement like the VFA which ousts Philippine courts of jurisdiction over members of visiting forces for crimes committed in the Philippines against Filipinos.

9.42. The VFA not only deprives Philippine courts of jurisdiction over certain offenses; it also deprives Philippine courts of custody over members of visiting forces in cases where Philippine courts may exercise jurisdiction and vest custody with United States military authorities from commission of the offense until completion of all judicial proceedings. Under Article V(6) of the VFA, the only undertaking on the part of the United States military authorities is to make these personnel available to Philippine courts, upon request by the latter. The VFA, however, relieves the United States of this obligation if the proceedings ar not completed within one(1) year./57

9.43. This provision defeats the inherent power of a court to: (a) compel obedience to its judgments, orders and processes, /58 and (b) to amend and control its processes and orders so as to make them conformable to law and justice./59 It also violates Article VIII, section 5(5) of the 1987 Constitution which vests in the Supreme Court solely the power to promulgate rules to govern pleading, practice and procedure.

9.44. The VFA thus usurps judicial power and impairs the inherent power of the courts to enforce its own processes and writs. It renders illusory the power of a Philippine court to enforce its jurisdiction for crimes committed by American members of the visiting forces within the country.

9.45. Being inconsistent with Article VIII, section 2 and Article VIII, section 5(5), the VFA is void; so too is the Senate’s concurrence in the VFA void, as the Senate effectively emasculated and rendered inutile the jurisdiction of Philippine courts over members of visiting forces through the deprivation of jurisdiction, the exemption from custody and the one-year prescription period.

THE VFA IS VOID BECAUSE IT ALLOWS THE DELEGATION OF SOVEREIGN PREROGATIVES TO FOREIGN MILITARY AUTHORITIES, IN VIOLATION OF ARTICLE II, SECTION 3 OF THE 1987 CONSTITUTION.

9.46. In the President’s letter requesting the Senate’s concurrence in his ratification of the VFA, the President refers to the VFA as 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) (and) to fulfill the objectives of the RP-US MDT, it is necessary that JOINT MILITARY EXERCISES are conducted…”/60 So too does the Instrument of Ratification refer to the VFA as an instrument that “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 the interoperability of the RP-US MDT.”/61

9.47. The President’s pronouncements that the VFA refers only to “joint military exercises” is, however, not supported by the text of the VFA itself. The VFA itself does not define the “activities” it covers. The nearest approximation is found in Article 1 which refers to “activities” in the following context:

Article 1

Definitions

“As used in this Agreement, United States personnel means United States military civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine government.”

9.48. The undefined “activities” in Article 1 reasonably leads to the inference that the Philippine government may approve “activities” other than “joint military exercises” as there is clearly no restriction in Article 1 for the Philippine government to do so. There is no means to determine, from the text and on the face of the VFA itself, the magnitude and scope of American military presence that has been authorized by the Senate and the President.

9.49. However, it must be stressed that, despite the text of the VFA, IT IS NOT THE PHILIPPINE GOVERNMENT THAT MAY UNILATERALLY APPROVE THE “ACTIVITIES” COVERED BY THE VFA, BUT RATHER THE MUTUAL DEFENSE BOARD(MDB). This is clear from Article V which allows the unnamed “United States military authorities ” to exercise United States military law within the Philippines, viz:

Article V

Criminal Jurisdiction

1. Subject to the provisions of this article: XXX

“(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.”

9.49.1. It is publicly acknowledged by the President that the VFA is an instrumentality to further the operation of the Mutual Defense Treaty. This link is clearly expressed in the VFA in its preambular paragraph, to wit: “(r)eaffirming their obligations under the Mutual Defense Treaty of August 30 ,1951…” The link between the VFA and the MDT makes clear the reason for the elasticity of the term “activities” under the VFA.

9.49.2. Under the MDT and the BOHLEN-SERRANO AGREEMENT, matters involving U.S. military assistance to the Philippines are not left to the unilateral decision of the Philippine government; being matters of mutual concern, decisions on these matters are subject to consultation between the two governments /62, which necessarily calls for the intervention of the MDB./63

9.49.3. Respondent Secretary of Foreign Affairs has publicly acknowledged on television and in various FORA that IT IS THE MDB THAT IS EMPOWERED TO APPROVE THE UNSPECIFIED “ACTIVITIES” UNDER THE VFA, despite the clear text of the VFA that provides for unilateral authorization by the Philippine government of any and all activities under the VFA.

9.50. The MDB is composed PURELY OF MILITARY OFFICERS FROM THE UNITED STATES AND THE PHILIPPINES, and is intended “to provide continuing intergovernmental machinery for direct liaison and consultation between appropriate Philippine and United States authorities on military matters of mutual concern.”/64 The VFA gives the MDB the authority to plan, undertake and allow any and all “activities.” THE MDB, CO-CHAIRED BY AN AMERICAN MILITARY OFFICER, ADMIRAL DENNIS BLAIR, COMMANDER-IN-CHIEF OF THE UNITED STATES PACIFIC COMMAND (USPACOM)AND GENERAL JOSELIN NAZARENO, AFP, THE CHIEF OF STAFF OF THE AFP, IS NOT THE PHILIPPINE GOVERNMENT. It cannot approve or authorize the unspecified “activities” under the VFA; nor can it be delegated the power and authority to approve and authorize these activities.

9.51. By failing to specify the “activities” covered by its provisions and leaving the determination of these activities to the MDB, the VFA delegates sovereign authority to a military entity. The VFA is an abdication and surrender of civilian supremacy over the military /65 and a derogation of the fundamental principle that sovereignty resides in the People and all governmental authority emanates from them. /66

THE VFA IS VOID BECAUSE IT RESULTS IN A DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS, IN VIOLATION OF ARTICLE III, SECTION 1.

9.52. The VFA provides that, aside from contractual claims, the United States Government will pay, “in accordance with American law regarding foreign claims, just and reasonable compensation in settlement of meritorious claims for damages, loss, personal injury or death caused by acts or omissions of United States personnel, or otherwise incident to non-combatant activities of the United States forces.”/67

9.53. This provision effectively immunizes and insulates the United States government from any claims which Filipinos, who are injured by the activities undertaken pursuant to the VFA, may rightfully have; it also results in a taking of property without due process in violation of Article III, section 1 of the 1987 Constitution.

9.54. Under Article VI(2) of the VFA, Filipinos who may suffer damage to property or loss of life or limb from any of the unspecified “activities” covered by the VFA are GUARANTEED ONLY A RESORT TO A REMEDY UNDER UNITED STATES LAW FOR ACTS COMMITTED BY MEMBERS OF THE VISITING FORCES WITHIN THE PHILIPPINES. THEIR ONLY LEGAL REMEDY IS TO FILE CLAIMS IN THE UNITED STATES IN ACCORDANCE WITH UNITED STATES FOREIGN CLAIMS LAW.

9.55. The VFA , thus, ensures that Filipino victims cannot effectively sue the United States Government for tort or for reparation for injuries suffered to life and limb because the sovereign status of the United States bar recovery of civil damages under the principle of sovereign immunity in International Law. In doing so, the VFA effectively immunizes the United States government from any claims arising out of tort or personal injuries inflicted by members of the visiting forces on “off-duty” status. It also, by the same token, deprives Filipino victims of property without due process of law /68 as it pits a valid and meritorious claims by Filipino victims for tort or personal injury or death against the United States’ sovereign status.

THE VFA IS VOID BECAUSE IT GRANTS TAX EXEMPTIONS WITHOUT THE CONCURRENCE OF BOTH HOUSES OF CONGRESS, IN VIOLATION OF ARTICLE VII, SECTION 28(4) OF THE 1987 CONSTITUTION.

9.56. The VFA allows exemptions from taxes and duties for 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 unspecified activities./69 This exemption is invalid because the 1987 Constitution vests the power to exempt from taxes only on Congress./70 The tax exemption under the VFA, thus, represents a usurpation of legislative power, which voids the Agreement.

9.57. Moreover, the concurrence by the Senate to the ratification of a document allowing for tax and duty exemptions, without a law passed and the concurrence of the House of Representatives, is void as it violates Article VI, section 28(4) of the 1987 Constitution. The power to grant tax and duty exemptions is a shared power belonging to both the Senate and the House of Representatives. WHILE IT IS THE SENATE THAT HAS THE SOLE POWER TO CONCUR IN THE VFA’S RATIFICATION, IT CANNOT ACT ALONE WHERE THE PROVISIONS OF THE VFA GRANT TAX AND DUTY EXEMPTIONS. By concurring in the ratification of the VFA without seeking the concurrence of the House of Representatives insofar as Article VII of the VFA is concerned, the Senate acted with grave abuse of discretion.

UNLESS RESTRAINED BY THIS HONORABLE COURT, RESPONDENTS WILL ENFORCE THE PROVISIONS OF AN UNCONSTITUTIONAL AND VOID TREATY AND WILL CAUSE PETITIONERS TO SUFFER GRAVE AND IRREPARABLE INJURY.

9.58. Petitioners Jovito R. Salonga, Wigberto E. Tanada, Zenaida Quezon Avancena, Roland G. Simbulan, Pablito V. Sanidad, Ma. Socorro I. Diokno, Agapito A. Aquino, Joker P. Arroyo, Francisco C. Rivera Jr. and Rene A.V. Saguisag are all Filipino citizens and taxpayers who have a vested right to the equal protection of the laws under Article III, section 1 of the 1987 Constitution. On the other hand, petitioners KILOSBAYAN and MABINI are duly-registered non-stock and non-profit organizations whose members are all Filipino citizens and taxpayers and have vested rights to the equal protection of the laws.

9.59. As demonstrated above, the VFA violates blatantly the constitutional guarantee of equal protection of the laws by favoring the visiting forces from the United States through its utterly discriminatory and grossly one-sided provisions. The VFA treats petitioners(except KILOSBAYAN and MABINI), who are all Filipino citizens as second-class citizens in their own country by extending to members of the visiting forces rights, privileges and benefits not enjoyed by Filipinos. The VFA is, thus, void.

9.60. Respondents are threatening to enforce the VFA by undertaking preparatory activities intended to carry out the joint military exercises called BALIKATAN by February in the year 2000. Unless respondents are restrained, they will carry out and enforce the provisions of a treaty that violates with impunity the 1987 Constitution and inflicts grave and irreparable injury to petitioners’ rights.

9.61. Unfortunately, before the writ of prohibition sought in this petition ma issue, repondents may render the reliefs prayed for herein moot and academic by enforcing the VFA. Consequently, petitioners respectfully submit that a Temporary Restraining Order(TRO) must issue to RESTRAIN AND ENJOIN respondents from undertaking any activities to enforce the VFA.

10. RELIEFS SOUGHT

WHEREFORE, premises considered, petitioners most respectfully pray that this petition be given DUE COURSE and that respondents be DIRECTED TO SUBMIT THEIR RESPECTIVE COMMENT to the petition.

Thereafter, petitioners most respectfully pray that this Honorable Court CALL for ORAL ARGUMENTS ON THE VARIOUS ISSUES on a date it finds convenient and, subsequently, after oral argument, that JUDGMENT BE RENDERED IN PETITIONERS’ FAVOR BY ISSUING:

(1) the WRIT OF CERTIORARI ISSUE to ANNUL AND DECLARE INVALID AND UNCONSTITUTIONAL the Visiting Forces Agreement(VFA);

(2) the WRIT OF CERTIORARI ISSUE TO ANNUL AND DECLARE UNCONSTITUTIONAL the Senate’s concurrence to the VFA;

(3) the WRIT OF PROHIBITION ISSUE to ENJOIN PERPETUALLY the implementation of the Visiting Forces Agreement particularly —

(3.1.) to ENJOIN the entry of foreign troopsinto the country under the terms set forth in the VFA;

(3.2.) to PROHIBIT the MUTUAL DEFENSE BOARD(MDB) from planning, conducting, undertaking and allowing for any of the unspecified activities allowed under the VFA, including Balikatan and all preparatory activities therefor;

(3.3) to ENJOIN respondent SECRETARY OF NATIONAL DEFENSE from allowing the participation of Filipino soldiers and/or public officers in any activities directed towards the implementation and enforcement of the VFA;

In the meantime, immediately upon GIVING DUE COURSE and pending receipt of respondents’ respective Comment, the setting of an oral argument and the resolution of this Petition, petitioners most respectfully pray that a TEMPORARY RESTRAINING ORDER(TRO) and/or a WRIT OF PRELIMINARY INJUNCTION ISSUE to IMMEDIATELY RESTRAIN AND ENJOIN the respondents Executive Secretary, Secretary of Foreign Affairs, and Secretary of National Defense, and all other persons acting under their direct control, supervision and instruction in relation to the implementation of the VFA from ENFORCING AND IMPLEMENTING THE VFA.

All other just and equitable reliefs are also prayed for.

RESPECTFULLY SUBMITTED.

The City of Manila, 4 June 1999.

WIGBERTO E. TANADA

AND

LORENZO R. TANADA III

PTR No. 0079519:1/26/99: Pasig City

IBP No. 481333:2/04/99: Pasig City

Counsels for Petitioners Jovito R. Salonga, Wigberto E. Tanada Sr., Agapito A. Aquino, Joker P. Arroyo, Rene A.V. Saguisag, KILOSBAYAN AND MABINI, 6th floor, Strata 200 Building, Emerald Avenue, Ortigas Center, Pasig City

FREE LEGAL ASSISTANCE GROUP (FLAG)

Counsel for Petitioners Zenaida Quezon Avancena, Roland G. Simbulan, Pablito V. Sanidad, Ma. Socorro I. Diokno and Francisco C. Rivera, Jr. c/o FLAG, MetroManila Regional Office, 2nd Floor, Transorient Maritime Bldg. 66 Timog Avenue, Quezon City.

NOTES:

/1 The prefatory statement is written by petitioner Jovito R. Salonga, with minor format revisions by the undersigned counsels.

/2 TEOFISTO GUINGONA JR., ET AL. V. JOSEPH EJERCITO ESTRADA , G.R. NO. 138227;

/3 A more detailed and substantive discussion on standing is made in the Petition itself.

/4 232 SCRA 110(1994);

/5 prom. December 9, 1998;

/6 I CONCOM RECORD at 436;

/7 TANADA V. ANGARA , 272 SCRA 18, 48(1997);

/8 Const.(1987), art. VIII, secs. 4(2), 5(1) and (2);

/9 Const. (1987), art. XVIII , sec. 25.

/10 Hencefort “VFA”; a certified true copy of the VFA is attached as ANNEX A.

/11 The Senate’s official concurrence is attested to by the enrolled copy of Senate Resolution 443, duly signed by all the 23 senators with their respective votes. However, DESPITE DILIGENT EFFORTS BY PETITIONERS TO SECURE A CERTIFIED TRUE COPY OF THE ENROLLED RESOLUTION TO ATTACH TO THIS PETITION, AS REQUIRED BY THE RULES OF COURT, AN ENROLLED COPY OF SENATE RESOLUTION NO. 443 IS NOT YET AVAILABLE AND, THUS, CANNOT BE ATTACHED TO THIS PETITION AS AN ANNEX, AS REQUIRED BY THE RULES.

PETITIONERS RESPECTFULLY SUBMIT THAT THIS HONORABLE COURT MAY, HOWEVER, TAKE JUDICIAL NOTICE THAT THE SENATE OF THE PHILIPPINES,ON MAY 27, 1999, CONCURRED IN THE PRESIDENT’S RATIFICATION OF THE VFA BY A VOTE OF 18-5. In view of the urgent reliefs prayed for in this petition and the public interest inherent on the issues relative to the VFA, particularly the injunctive writs to prevent the entry into force of what petitioners submit is an invalid treaty concurred in under unconstitutional circumstances, it is respectfully submitted that this Honorable Court has sufficient discretion to give this petition due course, despite the failure to attach the enrolled copy of Senate Resolution No. 443, which failure is fully justified by the foregoing explanation. PETITIONERS UNDERTAKE TO SUBMIT TO THIS HONORABLE COURT A CERTIFIED TRUE COPY OF THE ENROLLED COPY OF SENATE RESOLUTION 443 AS SOON AS IT IS AVAILABLE.

/12 A copy of the Instrument of Ratification is attached as ANNEX B.

/13 For instance, Dean Merlin M. Magallona of the University of the Philippines College of Law and former Senator Arturo M. Tolentino.

/14 A copy of the Joint Report is attached as ANNEX C.

/15 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 Aquino-Oreta, (8) Senator Robert Barbers, (9) Senator Robert Jaworski, (10) Senator Ramon Magsaysay Jr., (11) Senator John Osmena, (12) Senator Juan Flavier, (13) Senator Ramon Revilla, (14) Senator Juan Ponce Enrile, (15) Senator Vicente Sotto III,(16) Senator Miriam Defensor-Santiago, (17) Senator Anna Dominique Coseteng and (18) Senator Gregorio Honasan.

Only the following voted to reject the ratification of the VFA: (1) Senator Teofisto T. Guingona Jr., (2) Senator Raul S. Roco, (3) Senator Sergio Osmena III, (4) Senator Aquilino Pimentel Jr. and (5) Senator Loren Legarda-Leviste.

/16 Ople v. Torres, G.R. No. 127685, 23 July 1998; PHILCONSA v. Enriquez, 235 SCRA 506(1994); Guingona v. PCGG, 207 SCRA 659(1992); Tolentino v. COMELEC, 41 SCRA 702(1971);

/17 KILOSBAYAN v. Guingona Jr., 232 SCRA 110, 139(1994);

/18 Id. at 134;

/19 ARANETA V. DINGLASAN, RODRIGUEZ V. TESORERO DE FILIPINAS, GUERRERO V. COMMISSIONER OF CUSTOMS, BARREDO V. COMELEC, 84 PHIL. 368(1949) collectively known as the Emergency Powers Cases; see also Daza v. Singson, 180 SCRA 496(1988);

/20 PHILCONSA V. GIMENEZ, 15 SCRA 479(1965) on RA No. 3836 insofar as it allows retirement gratuity and commutation of vacation and sick leave to Senators and Representatives; CIVIL LIBERTIES UNION V. EXECUTIVE SECRETARY, 194 SCRA 317(1991),on EO No. 284(Series of 1987), which allowed members of the cabinet, their undersecretaries and assistant secretaries to hold other government offices and positions); GUINGONA V. CARAGUE, 196 SCRA 221(1991), on the automatic appropriations for debt service in the General Appropriations Act; OSMENA V. COMELEC, 199 SCRA 750(1991), on RA 7056 relative to the holding of descynchronized elections; BASCO V. PAGCOR, 197 SCRA 52(1991), on PD No. 1869(CHARTER OF PAGCOR) on the ground that it is contrary to morals, public policy and public order; CARPIO V. EXECUTIVE SECRETARY, 206 SCRA 290 1992), on RA 6975, establishing the Philippine National Policy, among many others;

/21 Const. (1987), art. XVIII, sec. 25;

/22 Const.(1987), art. II, sec. 8;

/23 Const. (1987), art. II, sec. 3;

/24 Const. (1987), art. II, sec. 7;

/25 Const. (1987), art. VIII, sec. 1, par. 2;

/26 By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Zarate v. Olegario, 263 SCRA 1(1996); Arroyo v. De Venecia, 277 SCRA 268(1997); Also, it may be an exercise of power that is both arbitrary and despotic by reason of passion or personal hostility and is so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. San Sebastian College v. Court of Appeals, 197 SCRA 138(1991); CIR v. CTA, 195 SCRA 444(1991); Simon v. CSC, 215 SCRA 410(1992); Bustamante v. COA SCRA 134(1992); Tanada v. Angara, 272, SCRA 18 (1997);

/27 272 SCRA 18 (1997);

/28 See 272 SCRA at 48-49;

/29 Rule 65, section 4, 1997 Rules on Civil Procedure vis Article VIII, section 5(2) directing that any review of constitutionality or validity of any treaty may be done by certiorari;

/30 “VFA is now in force, war games readied”, Malou Talosig, TODAY, 2 June 1999, p. 12;

/31 4 CONCOM RECORD at 774;

/32 4 CONCOM RECORD at 781;

/33 4 CONCOM RECORD at 782;

/34 Opinion of former Senator Arturo M. Tolentino expressed during the public hearings on the VFA cited in JOINT REPORT OF THE COMMITTEE ON FOREIGN RELATIONS AND THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY ON THE AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA REGARDING THE TREATMENT OF UNITED STATES ARMED FORCES VISITING THE PHILIPPINES(“Joint Report”) at 15;

/35 VFA, Art. V(6);

/36 VFA, Art. V(6);

/37 VFA, Art. III(2), (3);

/38 VFA, Art. III(4);

/39 VFA, Art. III(3c);

/40 VFA, Art. VIII(1);

/41 VFA, Art. VIII(2);

/42 Const.(1987) , art. II, sec. 8;

/43 VFA, Art. III(C);

/44 VFA, Article V, section 1(b);

/45 VFA, Article V, section 3;

/46 VFA , Article V(1)(b);

/47 Dictum in MIQUIABAS V. PHILIPPINES-RYUKUS COMMAND, 80 Phil. 262, 264(1948);

/48 191 SCRA 713, 726-728(1990), citations omitted, emphasis supplied;

/49 182 SCRA 664 (1990);

/50 219 SCRA 192, 210 (1993);

/51 209 SCRA 357 (1992); see also MINUCHER V. COURT OF APPEALS, 24 September 1992;

/52 209 SCRA at 367-368, emphasis supplied;

/53 The principle is already part of the law of the land by virtue of Article II, section 2 of the 1987 Constitution which incorporates the generally accepted principles of international law as part of the law of the land.

/54 80 Phil. 263(1948);

/55 See WYLIE V. Rarang, supra;

/56 VFA, Article V(3)(e);

/57 VFA, Article V(6);

/58 Rule 135, sec. 5(c);

/59 Rule 135, sec. 5(g);

/60 The President’s letter to the Senate President and the members of the Senate dated 5 October 1998 is attached as ANNEX D.

/61 ANNEX B, Second Preambular Paragraph;

/62 MDB, Article III;

/63 ANNEX A to the Bohlen-Serrano Agreement, (4) (sc);

/64 Id., (2);

/65 Const.(1987), art. II, sec. 3;

/66 Const. (1987), art. II, sec. 1;

/67 VFA , Article VI(2);

/68 Const.(1987), art. III, sec. 1;

/69 VFA, Article VII;

/70 Const.(1987), art. II, sec. 28(4).

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