bayan v. executive secretary

7/23/2019 Bayan v. Executive Secretary

1/22

EN BANC

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

BAYAN (Bagong A!an"ang #a$aba!an%, &'N )*A #O)E#EN+, B-O/+O#A- #A#ENA (ge"a *na neenente%, B-O/ E#ER

BOOCAN ('nte C4rc4 o6 C4r"t o6 t4e /4.%, R. REYNAO

EGA-CA, #, '-ANG #A#B'B' NG //NA-, '-ANG #AYO'NO, GABREA, /ROABOR, an t4e /'BC N+ERE-+ ACEN+ER, Petitioners, 9. E:EC'+)E -ECRE+ARY RONAO ;A#ORA,

*OREGN A**AR- -ECRE+ARY O#NGO -A;ON, E*EN-E -ECRE+ARYORANO #ERCAO, BRG. GEN. AE:ANER AG'RRE, -ENA+E

/RE-EN+ #ARCEO *ERNAN, -ENA+OR *RANN RON, -ENA+ORBA- O/E, -ENA+OR ROO*O BA;ON, an -ENA+OR *RANC-CO

+A+A, Respondents.

[G.R. No. 138572. October 10, 2000.]

///NE CON-++'+ON A--OCA+ON, NC.(/CON-A%, E:E


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of Foreign A5airs, rati;ed the VFA %

"n "ctober 3, $&&:, the President, acting through respondent B.ecuti0eSecretary Ronaldo amora, oDcially transmitted to the Senate of the Philippines,- the 1nstrument of Rati;cation, the letter of the President 3 and the VFA, forconcurrence pursuant to Section 6$, Article V11 of the $&:' Constitution !heSenate, in turn, referred the VFA to its Committee on Foreign Relations, chaired

by Senator (las F "ple, and its Committee on 8ational *efense and Security,chaired by Senator Rodolfo E (ia)on, for their 4oint consideration andrecommendation !hereafter, 4oint public hearings were held by the twoCommittees '

"n #ay +, $&&&, the Committees submitted Proposed Senate Resolution 8o %%+: recommending the concurrence of the Senate to the VFA and the creation of aegislati0e "0ersight Committee to o0ersee its implementation *ebates thenensued

"n #ay 6', $&&&, Proposed Senate Resolution 8o %%+ was appro0ed by theSenate, by a two2thirds ?6G+@ 0ote & of its members Senate Resolution 8o %%+was then re2numbered as Senate Resolution 8o $: $

"n 9une $, $&&&, the VFA oDcially entered into force after an B.change of 8otesbetween respondent Secretary Sia)on and United States Ambassador ubbard

!he VFA, which consists of a Preamble and nine ?&@ Articles, pro0ides for themechanism for regulating the circumstances and conditions under which USArmed Forces and defense personnel my be present in the Philippines, and isHuoted in its full te.t, hereunderI4gcIchanroblescomph

=Article 1

*e;nitions

=As used in this Agreement, JUnited States personnelK means United States

military and ci0ilian personnel temporarily in the Philippines in connection withacti0ities appro0ed by the Philippine Eo0ernment

=7ithin this de;nitionI4gcIchanroblescomph

=$ !he term Jmilitary personnelK refers to military members of the United StatesArmy, 8a0y, #arine Corps, Air Force, and Coast Euard

=6 !he term Jci0ilian personnelK refers to indi0iduals who are neither nationalsof, nor ordinary residents in the Philippines and who are employed by the UnitedStates armed forces or who are accompanying the United States armed forces,such as employees of the American Red Cross and the United Ser0ices"rgani)ation

=Article 11

Respect for aw

=1t is the duty of the United States personnel to respect the laws of the Republicof the Philippines and to abstain from any acti0ity inconsistent with the spirit ofthis2agreement, and, in particular, from any political acti0ity in the Philippines!he Eo0ernment of the United States shall ta/e all measures within its authorityto ensure that this is done

=Article 111

Bntry and *eparture

$ !he Eo0ernment of the Philippines shall facilitate the admission of UnitedStates personnel and their departure from the Philippines in connection withacti0ities co0ered by this agreement

6 United States military personnel shall be e.empt from passport and 0isaregulations upon entering and departing the Philippines

=+ !he following documents only, which shall be presented on demand, shall bereHuired in respect of United States military personnel who enter thePhilippinesIchanrob$es 0irtual $aw library

?a@ personal identity card issued by the appropriate United States authorityshowing full name, date of birth, ran/ or grade and ser0ice number ?if any@,branch of ser0ice and photograph>

?b@ indi0idual or collecti0e document issued by the appropriate United Statesauthority, authori)ing the tra0el or 0isit and identifying the indi0idual or group asUnited States military personnel> and

=?c@ the commanding oDcer of a military aircraft or 0essel shall present adeclaration of health, and when reHuired by the cogni)ant representati0e of theEo0ernment of the Philippines, shall conduct a Huarantine inspection and will

certify that the aircraft or 0essel is free from Huarantinable diseases AnyHuarantine inspection of United States aircraft or United States 0essels orcargoes thereon shall be conducted by the United States commanding oDcer inaccordance with the international health regulations as promulgated by the7orld ealth "rgani)ation, and mutually agreed procedures

% United States ci0ilian personnel shall be e.empt from 0isa reHuirements butshall present, upon demand, 0alid passports upon entry and departure of thePhilippines

- 1f the Eo0ernment of the Philippines has reHuested the remo0al of any UnitedStates personnel from its territory, the United States authorities shall beresponsible for recei0ing the person concerned within its own territory or

otherwise disposing of said person outside of the Philippines

=Article 1V

6


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*ri0ing and Vehicle Registration

$ Philippine authorities shall accept as 0alid, without test or fee, a dri0ingpermit or license issued by the appropriate United States authority to UnitedStates personnel for the operation of military or oDcial 0ehicles

6 Vehicles owned by the Eo0ernment of the United States need not beregistered, but shall ha0e appropriate mar/ings

=Article V

Criminal 9urisdiction

$ Sub4ect to the pro0isions of this articleIchanrob$es 0irtual $aw library

?a@ Philippine authorities shall ha0e 4urisdiction o0er United States personnelwith respect to o5enses committed within the Philippines and punishable underthe law of the Philippineschanrob$es 0irtua$ $aw $ibrary

?b@ United States military authorities shall ha0e the right to e.ercise within thePhilippines all criminal and disciplinary 4urisdiction conferred on them by themilitary law of the United States o0er United States personnel in the Philippines

6 ?a@ Philippine authorities e.ercise e.clusi0e 4urisdiction o0er United Statespersonnel with respect to o5enses, including o5enses relating to the security ofthe Philippines, punishable under the laws of the Philippines, but not under thelaws of the United States

?b@ United States authorities e.ercise e.clusi0e 4urisdiction o0er United Statespersonnel with respect to o5enses, including o5enses relating to the security ofthe United States, punishable under the laws of the United States, but not underthe laws of the Philippines

?c@ For the purposes of this paragraph and paragraph + of this article, an o5enserelating to security meansIchanrob$es 0irtual $aw library

?$@ treason>

?6@ sabotage, espionage or 0iolation of any law relating to national defense

=+ 1n cases where the right to e.ercise 4urisdiction is concurrent, the followingrules shall applyIchanrob$es 0irtual $aw library

?a@ Philippine authorities shall ha0e the primary right to e.ercise 4urisdiction o0erall o5enses committed by United States personnel, e.cept in cases pro0ided forin paragraphs $?b@, 6?b@, and +?b@ of this Article

?b@ United States military authorities shall ha0e the primary right to e.ercise4urisdiction o0er United States personnel sub4ect to the military law of the United

States in relation to

?$@ o5enses solely against the property or security of the United States oro5enses solely against the property or person of United States personnel> and

?6@ o5enses arising out of any act or omission done in performance of oDcialduty

?c@ !he authorities of either go0ernment may reHuest the authorities of the othergo0ernment to wai0e their primary right to e.ercise 4urisdiction in a particularcase

?d@ Recogni)ing the responsibility of the United States military authorities tomaintain good order and discipline among their forces, Philippine authorities will,upon reHuest by the United States, wai0e their primary right to e.ercise4urisdiction e.cept in cases of particular importance to the Philippines 1f theEo0ernment of the Philippines determines that the case is of particularimportance, it shall communicate such determination to the United Statesauthorities within twenty ?6@ days after the Philippine authorities recei0e theUnited States reHuest

?e@ 7hen the United States military commander determines that an o5ensecharged by authorities o f the Philippines against United states personnel arisesout of an act or omission done in the performance of oDcial duty, thecommander will issue a certi;cate setting forth such determination !hiscerti;cate will be transmitted to the appropriate authorities of the Philippinesand will constitute suDcient proof of performance of oDcial duty for thepurposes of paragraph +?b@?6@ of this Article 1n those cases where theEo0ernment of the Philippines belie0es the circumstances of the case reHuire are0iew of the duty certi;cate, United States military authorities and Philippineauthorities shall consult immediately Philippine authorities at the highest le0elsmay also present any information bearing on its 0alidity United States militaryauthorities shall ta/e full account of the Philippine position 7here appropriate,United States military authorities will ta/e disciplinary or other action against

o5enders in oDcial duty cases, and notify the Eo0ernment of the Philippines ofthe actions ta/en

?f@ 1f the go0ernment ha0ing the primary right does not e.ercise 4urisdiction, itshall notify the authorities of the other go0ernment as soon as possible

?g@ !he authorities of the Philippines and the United States shall notify eachother of the disposition of all cases in which both the authorities of thePhilippines and the United States ha0e the right to e.ercise 4urisdiction

=% 7ithin the scope of their legal competence, the authorities of the Philippinesand United States shall assist each other in the arrest of United States personnelin the Philippines and in handling them o0er to authorities who are to e.ercise

4urisdiction in accordance with the pro0isions of this article

=- United States military authorities shall promptly notify Philippine authorities

+


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of the arrest or detention of United States personnel who are sub4ect ofPhilippine primary or e.clusi0e 4urisdiction Philippine authorities shall promptlynotify United States military authorities of the arrest or detention of any UnitedStates personnel

=3 !he custody any United States personnel o0er whom the Philippines is toe.ercise 4urisdiction shall immediately reside with United States military

authorities, if they so reHuest, from the commission of the o5ense untilcompletion of all 4udicial proceedings United States military authorities shall,upon formal noti;cation by the Philippine authorities and without delay, ma/esuch personnel a0ailable to those authorities in time for any in0estigati0e or4udicial proceedings relating to the o5ense with which the person has beencharged in e.traordinary cases, the Philippine Eo0ernment shall present itsposition to the United States Eo0ernment regarding custody, which the UnitedStates Eo0ernment shall ta/e into full account 1n the e0ent Philippine 4udicialproceedings are not completed within one year, the United States shall berelie0ed of any obligations under this paragraph !he one2year period will notinclude the time necessary to appeal Also, the one2year period will not includeany time during which scheduled trial procedures are delayed because UnitedStates authorities, after timely noti;cation by Philippine authorities to arrangefor the presence of the accused, fail to do so

=' 7ithin the scope of their legal authority, United States and Philippineauthorities shall assist each other in the carrying out of all necessaryin0estigation into o5enses and shall cooperate in pro0iding for the attendance ofwitnesses and in the collection and production of e0idence, including sei)ureand, in proper cases, the deli0ery of ob4ects connected with an o5ense

=: 7hen United States personnel ha0e been tried in accordance with thepro0isions of this Article and ha0e been acHuitted or ha0e been con0icted andare ser0ing, or ha0e ser0ed their sentence, or ha0e had their sentence remittedor suspended, or ha0e been pardoned, they may not be tried again for the sameo5ense in the Philippines 8othing in this paragraph, howe0er, shall pre0entUnited States military t authorities from trying United States personnel for any

0iolation of rules of discipline arising from the act or omission which constitutedan o5ense for which they were tried by Philippine authoritieschanrob$es 0irtua$$aw $ibrary

=& 7hen United States personnel are detained, ta/en into custody, orprosecuted by Philippine authorities, they shall be accorded all proceduralsafeguards established by the law of the Philippines At the minimum, UnitedStates personnel shall be entitledIchanrob$es 0irtual $aw library

?a@ !o a prompt and speedy trial>

?b@ !o be informed in ad0ance of trial of the speci;c charge or charges madeagainst them and to ha0e reasonable time to prepare a defense>

?c@ !o be confronted with witnesses against them and to cross e.amine suchwitnesses>

?d@ !o present e0idence in their defense and to ha0e compulsory process forobtaining witnesses>

?e@ !o ha0e free and assisted legal representation of their own choice on thesame basis as nationals of the Philippines>

?f@ !o ha0e the ser0ice of a competent interpreter> and

?g@ !o communicate promptly with and to be 0isited regularly by United Statesauthorities, and to ha0e such authorities present at all 4udicial proceedings!hese proceedings shall be public unless the court, in accordance with Philippinelaws, e.cludes persons who ha0e no role in the proceedings

=$ !he con;nement or detention by Philippine authorities of United Statespersonnel shall be carried out in facilities agreed on by appropriate Philippineand United States authorities United States Personnel ser0ing sentences in thePhilippines shall ha0e the right to 0isits and material assistance

=$$ United States personnel shall be sub4ect to trial only in Philippine courts ofordinary 4urisdiction, and shall not be sub4ect to the 4urisdiction of Philippinemilitary or religious courts

=Article V1

Claims

=$ B.cept for contractual arrangements, including United States foreign militarysales letters of o5er and acceptance and leases of military eHuipment, bothgo0ernments wai0e any and all claims against each other for damage, loss ordestruction to property of each otherKs armed forces or for death or in4ury totheir military and ci0ilian personnel arising from acti0ities to which thisagreement applies

=6 For claims against the United States, other than contractual claims and thoseto which paragraph $ applies, the United States Eo0ernment, in accordance withUnited States law regarding foreign claims, will pay 4ust and reasonablecompensation in settlement of meritorious claims for damage, loss, personalin4ury or death, caused by acts or omissions of United States personnel, orotherwise incident to the non2combat acti0ities of the United States forces

=Article V11

1mportation and B.portation

=$ United States Eo0ernment eHuipment, materials, supplies, and otherproperty imported into or acHuired in the Philippines by or on behalf of the

United States armed forces in connection with acti0ities to which this agreementapplies, shall be free of all Philippine duties, ta.es and other similar charges!itle to such property shall remain with the United States, which may remo0e

%


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such property from the Philippines at any time, free from e.port duties, ta.es,and other similar charges !he e.emptions pro0ided in this paragraph shall alsoe.tend to any duty, ta., or other similar charges which would otherwise beassessed upon such property after importation into, or acHuisition within, thePhilippines Such property may be remo0ed from the Philippines, or disposed oftherein, pro0ided that disposition of such property in the Philippines to personsor entities not entitled to e.emption from applicable ta.es and duties shall be

sub4ect to payment of such ta.es, and duties and prior appro0al of the PhilippineEo0ernment

=6 Reasonable Huantities of personal baggage, personal e5ects, and otherproperty for the personal use of United States personnel may be imported intoand used in the Philippines free of all duties, ta.es and other similar chargesduring the period of their temporary stay in the Philippines !ransfers to personsor entities in the Philippines not entitled to import pri0ileges may only be madeupon prior appro0al of the appropriate Philippine authorities including paymentby the recipient of applicable duties and ta.es imposed in accordance with thelaws of the Philippines !he e.portation of such property and of propertyacHuired in the Philippines by United States personnel shall be free of allPhilippine duties, ta.es, and other similar charges

=Article V111

#o0ement of Vessels and Aircraft

=$ Aircraft operated by or for the United States armed forces may enter thePhilippines upon appro0al of the Eo0ernment of the Philippines in accordancewith procedures stipulated in implementing arrangements

=6 Vessels operated by or for the United States armed forces may enter thePhilippines upon appro0al of the Eo0ernment of the Philippines !he mo0ementof 0essels shall be in accordance with international custom and practicego0erning such 0essels> and such agreed implementing arrangements asnecessary

=+ Vehicles, 0essels, and aircraft operated by or for the United States armedforces shall not be sub4ect to the payment of landing or port fees, na0igation oro0er Light charges, or tolls or other use charges, including light and harbor dues,while in the Philippines Aircraft operated by or for the United States armedforces shall obser0e local air traDc control regulations while in the PhilippinesVessels owned or operated by the United States solely on United StatesEo0ernment non2commercial ser0ice shall not be sub4ect to compulsory pilotageat Philippine ports

=Article 1M

*uration and !ermination

=!his agreement shall enter into force on the date on which the parties ha0enoti;ed each other in writing through the diplomatic channel that they ha0e

completed their constitutional reHuirements for entry into force !his agreementshall remain in force until the e.piration of $: days from the date on whicheither party gi0es the other party notice in writing that it desires to terminatethe agreement=cralaw 0irtua$aw library

Via these consolidated $$ petitions for certiorariand prohibition, petitioners as legislators, non2go0ernmental organi)ations, citi)ens and ta.payers assail

the constitutionality of the VFA and impute to herein respondents gra0e abuse ofdiscretion in ratifying the agreement

7e ha0e simpli;ed the issues raised by the petitioners into thefollowingIchanrob$es 0irtual $aw library

1

*o petitioners ha0e legal standing as concerned citi)ens, ta.payers, orlegislators to Huestion the2 constitutionality of the VFAN

11

1s the VFA go0erned by the pro0isions of Section 6$, Article V11 or of Section 6-,Article MV111 of the ConstitutionNchanrob$es 0irtua$ law library

111

*oes the VFA constitute an abdication of Philippine so0ereigntyN

a Are Philippine courts depri0ed of their 4urisdiction to hear and try o5ensescommitted by US military personnelN

b 1s the Supreme Court depri0ed of its 4urisdiction o0er o5enses punishable byreclusion perpetua or higherN

1V

*oes the VFA 0iolateIchanrob$es 0irtual $aw library

a the eHual protection clause under Section $, Article 111 of the ConstitutionN

b the prohibition against nuclear weapons under Article 11, Section :N

c Section 6: ?%@, Article V1 of the Constitution granting the e.emption from ta.es

and duties for the eHuipment, materials, supplies and other properties importedinto or acHuired in the Philippines by, or on behalf, of the US Armed ForcesN

-


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"CUS S!A8*1

At the outset, respondents challenge petitionersK standing to sue, on the groundthat the latter ha0e not shown any interest in the case, and that petitionersfailed to substantiate that they ha0e sustained, or will sustain direct in4ury as aresult of the operation of the VFA $6 Petitioners, on the other hand, counter thatthe 0alidity or in0alidity of the VFA is a matter of transcendental importance

which 4usti;es their standing $+

A party bringing a suit challenging the constitutionality of a law, act, or statutemust show =not only that the law is in0alid, but also that he has sustained or isin immediate, or imminent danger of sustaining some direct in4ury as a result ofits enforcement, and not merely that he su5ers thereby in some inde;nite way=e must show that he has been, or is about to be, denied some right or pri0ilegeto which he is lawfully entitled, or that he is about to be sub4ected to someburdens or penalties by reason of the statute complained of $%

1n the case before us, petitioners failed to show, to the satisfaction of this Court,that they ha0e sustained, or are in danger of sustaining any direct in4ury as aresult of the enforcement of the VFA As ta.payers, petitioners ha0e notestablished that the VFA in0ol0es the e.ercise by Congress of its ta.ing orspending powers $- "n this point, it bears stressing that a ta.payerKs suit refersto a case where the act complained of directly in0ol0es the illegal disbursementof public funds deri0ed from ta.ation $3 !hus, in (ugnay Const O *e0elopmentCorp 0 aron $' , we heldI4gcIchanroblescomph

= it is e.igent that the ta.payer2plainti5 suDciently show that he would bebene;ted or in4ured by the 4udgment or entitled to the a0ails of the suit as a realparty in interest (efore he can in0o/e the power of 4udicial re0iew, he mustspeci;cally pro0e that he has suDcient interest in pre0enting the illegale.penditure of money raised by ta.ation and that he will sustain a direct in4uryas a result of the enforcement of the Huestioned statute or contract 1t is notsuDcient that he has merely a general interest common to all members of thepublic=cralaw 0irtua$aw library

Clearly, inasmuch as no public funds raised by ta.ation are in0ol0ed in this case,and in the absence of any allegation by petitioners that public funds are beingmisspent or illegally e.pended, Petitioners, as ta.payers, ha0e no legal standingto assail the legality of the VFA

Similarly, Representati0es 7igberto !aada, Agapito AHuino and 9o/er Arroyo, aspetitioners2legislators, do not possess the reHuisite locus standi to maintain thepresent suit 7hile this Court, in Phil Constitution Association 0 on Sal0adorBnriHue), $: sustained the legal standing of a member of the Senate and theouse of Representati0es to Huestion the 0alidity of a presidential 0eto or acondition imposed on an item in an appropriation bill, we cannot, at thisinstance, similarly uphold petitionersK standing as members of Congress, in the

absence of a clear showing of any direct in4ury to their person or to theinstitution to which they belong

(eyond this, the allegations of impairment of legislati0e power, such as thedelegation of the power of Congress to grant ta. e.emptions, are more apparentthan real 7hile it may be true that petitioners pointed to pro0isions of the VFAwhich allegedly impair their legislati0e powers, petitioners failed howe0er tosuDciently show that they ha0e in fact su5ered direct in4ury

1n the same 0ein, petitioner 1ntegrated (ar of the Philippines ?1(P@ is stripped of

standing in these cases As aptly obser0ed by the Solicitor Eeneral, the 1(P lac/sthe legal capacity to bring this suit2in the absence of a 2board resolution from its(oard of Eo0ernors authori)ing its 8ational President to commence the presentaction $&

8otwithstanding, in 0iew of the paramount importance and the constitutionalsigni;cance of the issues raised in the petitions, this Court, in2 the e.ercise of itssound discretion, brushes aside the procedural barrier and ta/es cogni)ance ofthe petitions, as we ha0e done in the early Bmergency Powers Cases, 6 wherewe had occasion to ruleI4gcIchanroblescomph

= ordinary citi)ens and ta.payers were allowed to Huestion theconstitutionality of se0eral e.ecuti0e orders issued by President Quirino althoughthey were in0ol0ing only an indirect and general interest shared in common withthe public !he Court dismissed the ob4ection that they were not proper partiesand ruled that Jtranscendental importance to the public of these cases demandsthat they be settled promptly and de;nitely, brushing aside, if we must,technicalities of procedureK 7e ha0e since then applied the e.ception in manyother cases ?Association of Small andowners in the Philippines, 1nc 0 Sec ofAgrarian Reform, $'- SCRA +%+@= ?Bmphasis Supplied@

!his principle was reiterated in the subseHuent cases of Eon)ales 0 C"#BBC,6$ *a)a 0 Singson, 66 and (asco 0 Phil Amusement and Eaming Corporation,6+ where we emphatically heldI4gcIchanroblescomph

=Considering howe0er the importance to the public of the case at bar, and in/eeping with the CourtKs duty, under the $&:' Constitution, to determine

whether or not the other branches of the go0ernment ha0e /ept themsel0eswithin the limits of the Constitution and the laws and that they ha0e not abusedthe discretion gi0en to them, the Court has brushed aside technicalities ofprocedure and has ta/en cogni)ance of this petition =cralaw 0irtua$awlibrary

Again, in the more recent case of


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APP1CA(B C"8S!1!U!1"8A PR"V1S1"8

"ne focal point of inHuiry in this contro0ersy is the determination of whichpro0ision of the Constitution applies, with regard to the e.ercise by the Senate ofits constitutional power to concur with the VFA Petitioners argue that Section 6-,Article MV111 is applicable considering that the VFA has for its sub4ect thepresence of foreign military troops in the Philippines Respondents, on the

contrary, maintain that Section 6$, Article V11 should apply inasmuch as the VFAis not a basing arrangement but an agreement which in0ol0es merely thetemporary 0isits of United States personnel engaged in 4oint military e.ercises

!he $&:' Philippine Constitution contains two pro0isions reHuiring theconcurrence of the Senate on treaties or international agreements Section 6$,Article V11, which herein respondents in0o/e, readsIchanrob$es 0irtua$ $aw$ibrary

8o treaty or international agreement shall be 0alid and e5ecti0e unlessconcurred in by at least two2thirds of all the #embers of the Senate=cralaw0irtua$aw library

Section 6-, Article MV111, pro0idesI4gcIchanroblescomph

=After the e.piration in $&&$ of the Agreement between the Republic of thePhilippines and the United States of America concerning #ilitary (ases, foreignmilitary bases, troops, or facilities shall not be allowed in the Philippines e.ceptunder a treaty duly concurred in by the Senate and, when the Congress soreHuires, rati;ed by a ma4ority of the 0otes cast by the people in a nationalreferendum held for that purpose, and recogni)ed as a treaty by the othercontracting State=cralaw 0irtua$aw library

Section 6$, Article V11 deals with treaties or international agreements in general,in which case, the concurrence of at least two2thirds ?6G+@ of all the #embers ofthe Senate is reHuired to ma/e the sub4ect treaty, or international agreement,0alid and binding on the part of the Philippines !his pro0ision lays down the

general rule on treaties or international agreements and applies to any form oftreaty with a wide 0ariety of sub4ect matter, such as, but not limited to,e.tradition or ta. treaties or those economic in nature All treaties orinternational agreements entered into by the Philippines, regardless of sub4ectmatter, co0erage, or particular designation or appellation, reHuires theconcurrence of the Senate to be 0alid and e5ecti0e

1n contrast, Section 6-, Article MV111 is a special pro0ision that applies to treatieswhich in0ol0e the presence of foreign military bases, troops or facilities in thePhilippines Under this pro0ision, the concurrence of the Senate is only one ofthe reHuisites to render compliance with the constitutional reHuirements and toconsider the agreement binding on the Philippines Section 6-, Article MV111further reHuires that =foreign military bases, troops, or facilities= may be allowed

in the Philippines only by 0irtue of a treaty duly concurred in by the Senate,rati;ed by a ma4ority of the 0otes cast in a national referendum held for thatpurpose if so reHuired by Congress, and recogni)ed as such by the other

contracting state

1t is our considered 0iew that both constitutional pro0isions, far fromcontradicting each other, actually share some common ground !heseconstitutional pro0isions both embody phrases in the negati0e and thus, aredeemed prohibitory in mandate and character 1n particular, Section 6$ openswith the clause =8o treaty ,= and Section 6- contains the phrase =shall not be

allowed= Additionally, in both instances, the concurrence of the Senate isindispensable to render the treaty or international agreement 0alid ande5ecti0e

!o our mind, the fact that the President referred the VFA to the Senate underSection 6$, Article V11, and that the Senate e.tended its concurrence under thesame pro0ision, is immaterial For in either case, whether under Section 6$,Article V11 or Section 6-, Article MV111 , the fundamental law is crystalline that theconcurrence of the Senate is mandatory to comply with the strict constitutionalreHuirements

"n the whole, the VFA is an agreement which de;nes the treatment of UnitedStates troops and personnel 0isiting the Philippines 1t pro0ides for the guidelinesto go0ern such 0isits of military personnel, and further de;nes the rights of theUnited States and the Philippine go0ernment in the matter of criminal4urisdiction, mo0ement of 0essel and aircraft, importation and e.portation ofeHuipment, materials and supplies

Undoubtedly, Section 6-, Article MV111, which speci;cally deals with treatiesin0ol0ing foreign military bases, troops, or facilities, should apply in the instantcase !o a certain e.tent and in a limited sense, howe0er, the pro0isions ofSection 6$, Article V11 will ;nd applicability with regard to the issue and for thesole purpose of determining the number of 0otes reHuired to obtain the 0alidconcurrence of the Senate, as will be further discussed hereunder

1t is a ;nely2imbedded principle in statutory construction that a special pro0isionor law pre0ails o0er a general one e. specialis derogat generali !hus, where

there is in the same statute a particular enactment and also a general onewhich, in its most comprehensi0e sense, would include what is embraced in theformer, the particular enactment must be operati0e, and the general enactmentmust be ta/en to a5ect only such cases within its general language which arenot within the pro0ision of the particular enactment 63

1n e0eri)a 0 1ntermediate Appellate Court, 6' weenunciatedI4gcIchanroblescomph

= that another basic principle of statutory construction mandates that generallegislation must gi0e way to special legislation on the same sub4ect, andgenerally be so interpreted as to embrace only cases in which the specialpro0isions are not applicable ?Sto *omingo 0 de los Angeles, &3 SCRA $+&@,

that a speci;c statute pre0ails o0er a general statute ?*e 9esus 0 People, $6SCRA '3@ and that where two statutes are of eHual theoretical application to aparticular case, the one designed therefor specially should pre0ail ?7il

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7ilhensen 1nc 0 (aluyot, :+ SCRA +:@=cralaw 0irtua$aw library

#oreo0er, it is specious to argue that Section 6-, Article MV111 is inapplicable tomere transient agreements for the reason that there is no permanent placing ofstructure for the establishment of a military base "n this score, the Constitutionma/es no distinction between =transient= and =permanent= Certainly, we ;ndnothing in Section 6-, Article MV111 that reHuires foreign troops or facilities to be

stationed or placed permanently in the Philippines

1t is a rudiment in legal hermeneutics that when no distinction is made by law>the Court should not distinguish Ubi le. non distinguit nec nos distinguiredebemos

1n li/e manner, we do not subscribe to the argument that Section 6-, Article MV111is not controlling since no foreign military bases, but merely foreign troops andfacilities, are in0ol0ed in the VFA 8otably, a perusal of said constitutionalpro0ision re0eals that the proscription co0ers =foreign military bases, troops, orfacilities= Stated di5erently, this prohibition is not limited to the entry of troopsand facilities without any foreign bases being established !he clause does notrefer to =foreign military bases, troops, or facilities= collecti0ely but treats themas separate and independent sub4ects !he use of comma and the dis4uncti0eword =or= clearly signi;es disassociation and independence of one thing from theothers included in the enumeration, 6: such that, the pro0ision contemplatesthree di5erent situations a military treaty the sub4ect of which could be either?a@ foreign bases, ?b@ foreign troops, or ?c@ foreign facilities any of the threestanding alone places it under the co0erage of Section 6-, ArticleMV111chanrob$es 0irtua$ $aw $ibrary

!o this end, the intention of the framers of the Charter, as manifested during thedeliberations of the $&:3 Constitutional Commission, is consistent with thisinterpretationI4gcIchanroblescomph

=#R #AA#("8E 1 4ust want to address a Huestion or two to Commissioner(ernas

!his formulation spea/s of three thingsI foreign military bases, troops orfacilities #y ;rst Huestion isI 1f the country does enter into such /ind of a treaty,must it co0er the three2bases, troops or facilities or could the treaty entered intoco0er only one or twoN

FR (BR8AS *e;nitely, it can co0er only one 7hether it co0ers only one or itco0ers three, the reHuirement will be the same

#R #AA#("8E 1n other words, the Philippine go0ernment can enter into atreaty co0ering not bases but merely troopsN

FR (BR8AS es

#R #AA#("8E 1 cannot ;nd any reason why the, go0ernment can enter into atreaty co0ering only troops

FR (BR8AS 7hy notN Probably if we stretch our imagination a little bit more, wewill ;nd some 7e 4ust want to co0er e0erything= 6& ?Bmphasis Supplied@

#oreo0er, military bases established within the territory of another state is nolonger 0iable because of the alternati0es o5ered by new means and weapons ofwarfare such as nuclear weapons, guided missiles as well as huge sea 0essels

that can stay aLoat in the sea e0en for months and years without returning totheir home country !hese military warships are actually used as substitutes fora land2home base not only of military aircraft but also of military personnel andfacilities (esides, 0essels are mobile as compared to a land2based militaryheadHuarters

At this 4uncture, we shall then resol0e the issue of whether or not thereHuirements of Section 6- were complied with when the Senate ga0e itsconcurrence to the VFA

Section 6-, Article MV111 disallows foreign military bases, troops, or facilities inthe country, unless the following conditions are suDciently met, 0i)I ?a@ it mustbe under a treaty> ?b@ the treaty must be duly concurred in by the Senate and,when so reHuired by Congress, rati;ed by a ma4ority of the 0otes cast by thepeople in a national referendum> and ?c@ recogni)ed as a treaty by the othercontracting state

!here is no dispute as to the presence of the ;rst two reHuisites in the case ofthe VFA !he concurrence handed by the Senate through Resolution 8o $: is inaccordance with the pro0isions of the Constitution, whether under the generalreHuirement in Section 6$, Article V11, or the speci;c mandate mentioned inSection 6-, Article MV111, the pro0ision in the latter article reHuiring rati;cation bya ma4ority of the 0otes cast in a national referendum being unnecessary sinceCongress has not reHuired it

As to the matter of 0oting, Section 6$, Article V11 particularly reHuires that atreaty or international agreement, to be 0alid and e5ecti0e, must be concurred

in by at least two2thirds of all the members of the Senate "n the other hand,Section 6-, Article MV111 simply pro0ides that the treaty be a =duly concurred inby the Senate=cralaw 0irtua$aw library

Applying the foregoing constitutional pro0isions, a two2thirds 0ote of all themembers of the Senate is clearly reHuired so that the concurrence contemplatedby law may be 0alidly obtained and deemed present 7hile it is true that Section6-, Article MV111 reHuires, among other things, that the treaty the VFA, in theinstant case be a =duly concurred in by the Senate,= it is 0ery true howe0erthat said pro0ision must be related and 0iewed in l ight of the clear mandateembodied in Section 6$, Article V11, which in more speci;c terms, reHuires thatthe concurrence of a treaty, or international agreement, be made by a two2thirds0ote of all the members of the Senate 1ndeed, Section 6-, Article MV111 must not

be treated in isolation to Section 6$, Article, V11

As noted, the =concurrence reHuirement= under Section 6-, Article MV111 must be

:


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construed in relation to the pro0isions of Section 6$, Article V11 1n a moreparticular language, the concurrence of the Senate contemplated under Section6-, Article MV111 means that at least two2thirds of all the members of the Senatefa0orably 0ote to concur with the treaty the VFA in the instant case

Under these circumstances, the charter pro0ides that the Senate shall becomposed of twenty2four ?6%@ Senators + 7ithout a tinge of doubt, two2thirds

?6G+@ of this ;gure, or not less than si.teen ?$3@ members, fa0orably acting onthe proposal is an unHuestionable compliance with the reHuisite number of 0otesmentioned in Section 6$ of Article V11 !he fact that there were actually twenty2three ?6+@ incumbent Senators at the time the 0oting was made, +$ will not alterin any signi;cant way the circumstance that more than two2thirds of themembers of the Senate concurred with the proposed VFA, e0en if the two2thirds0ote reHuirement is based on this ;gure of actual members ?6+@ 1n this regard,the fundamental law is clear that two2thirds of the 6% Senators, or at least $3fa0orable 0otes, suDce so as to render compliance with the strict constitutionalmandate of gi0ing concurrence to the sub4ect treaty

a0ing resol0ed that the ;rst two reHuisites prescribed in Section 6-, ArticleMV111 are present, we shall now pass upon and del0e on the reHuirement that theVFA should be recogni)ed as a treaty by the United States of America

Petitioners contend that the phrase =recogni)ed as a treaty,= embodied inSection 6-, Article MV111, means that the VFA should ha0e the ad0ice and consentof the United States Senate pursuant to its own constitutional process, and thatit should not be considered merely an e.ecuti0e agreement by the UnitedStates

1n opposition, respondents argue that the letter of United States Ambassadorubbard stating that the VFA is binding on the United States Eo0ernment isconclusi0e, on the point that the VFA is recogni)ed as a treaty by the UnitedStates of America According to respondents, the VFA, to be binding, must onlybe accepted as a treaty by the United States

!his Court is o the ;rm 0iew that the phrase =recogni)ed as a treaty= meansthat the other contracting party accepts or ac/nowledges the agreement as atreaty +6 !o reHuire the other contracting state, the United States of America inthis case, to submit the VFA to the United States Senate for concurrencepursuant to its Constitution, ++ is to accord strict meaning to thephrasechanrob$es 0irtua$ $aw $ibrary

7ell2entrenched is the principle that the words used in the Constitution are to begi0en their ordinary meaning e.cept where technical terms are employed, inwhich case the signi;cance thus attached to them pre0ails 1ts language shouldbe understood in the sense they ha0e in common use +%

#oreo0er, it is inconseHuential whether the United States treats the VFA only as

an e.ecuti0e agreement because, under international law, an e.ecuti0eagreement is as binding as a treaty +- !o be sure, as long as the VFA possessesthe elements of an agreement under international law, the said agreement is to

be ta/en eHually as a treaty

A treaty, as de;ned by the Vienna Con0ention on the aw of !reaties, is =aninternational instrument concluded between States in written form and go0ernedby international law, whether embodied in a single instrument or in two or morerelated instruments, and whate0er its particular designation= +3 !here aremany other terms used for a treaty or international agreement, some of which

areI act, protocol, agreement, compromis dK arbitrage, concordat, con0ention,declaration, e.change of notes, pact, statute, charter and modus 0i0endi Allwriters, from ugo Erotius onward, ha0e pointed out that the names or titles ofinternational agreements included under the general term treaty ha0e little orno legal signi;cance Certain terms are useful, but they furnish little more thanmere description +'

Article 6?6@ of the Vienna Con0ention pro0ides that =the pro0isions of paragraph$ regarding the use of terms in the present Con0ention are without pre4udice tothe use of those terms, or to the meanings which may be gi0en to them in theinternal law of the State=cralaw 0irtua$aw library

!hus, in international law, there is no di5erence between treaties and e.ecuti0eagreements in their binding e5ect upon states concerned, as long as thenegotiating functionaries ha0e remained within their powers +: 1nternationallaw continues to ma/e no distinction between treaties and e.ecuti0eagreementsI they are eHually binding obligations upon nations +&

1n our 4urisdiction, we ha0e recogni)ed the binding e5ect of e.ecuti0eagreements e0en without the concurrence of the Senate or Congress 1nCommissioner of Customs 0 Bastern Sea !rading, % we had occasion topronounceI4gcIchanroblescomph

= the right of the B.ecuti0e to enter into binding agreements without thenecessity of subseHuent Congressional appro0al has been con;rmed by longusage From the earliest days of our history we ha0e entered into e.ecuti0eagreements co0ering such sub4ects as commercial and consular relations, most2

fa0ored2nation rights, patent rights, trademar/ and copyright protection, postaland na0igation arrangements and the settlement of claims !he 0alidity of thesehas ne0er been seriously Huestioned by our courts

x x x

=Furthermore, the United States Supreme Court has e.pressly recogni)ed the0alidity and constitutionality of e.ecuti0e agreements entered into withoutSenate appro0al ?+& Columbia aw Re0iew, pp '-+2'-%@ ?See, also, US 0Curtis 7right B.port Corporation, 6&& US +%, :$ ed 6--> US 0 (elmont,+$ US +6%, :$ ed $$+%> U- 0 Pin/, +$- US 6+, :3 ed '&3> ")anic 0US $:: F 6d 6::> ale aw 9ournal, Vol $- pp $&-2$&3> California aw

Re0iew, Vol 6-, pp 3'23'-> yde on 1nternational aw TRe0ised Bdition, Vol 6,pp $%-, $%$32$%$:> 7illoughby on the US Constitution aw, Vol 1 T6d ed,

&


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pp -+'2-%> #oore, 1nternational aw *igest, Vol V, pp 6$26$:> ac/worth,1nternational aw *igest, Vol V, pp +&2%'@ ?Bmphasis Supplied@= ?Emphasisours@

!he deliberations of the Constitutional Commission which drafted the $&:'Constitution is enlightening and highly2instructi0eI4gcIchanroblescomph

=#R #AA#("8E "f course it goes without saying that as far as rati;cation ofthe other state is concerned, that is entirely their concern under their own laws

FR (BR8AS es, but we will accept whate0er they say 1f they say that we ha0edone e0erything to ma/e it a treaty, then as far as we are concerned, we willaccept it as a treaty= %$

!he records re0eal that the United States Eo0ernment, through Ambassador!homas C ubbard, has stated that the United States go0ernment has fullycommitted to li0ing up to the terms of the VFA %6 For as long as the UnitedStates of America accepts or ac/nowledges the VFA as a treaty, and binds itselffurther to comply with its obligations under the treaty, there is indeed mar/edcompliance with the mandate of the Constitution

7orth stressing too, is that the rati;cation, by the President, of the VFA and theconcurrence of the Senate should be ta/en as a clear and uneHui0ocale.pression of our nationKs consent to be bound by said treaty, with theconcomitant duty to uphold the obligations and responsibilities embodiedthereunder

Rati;cation is generally held to be an e.ecuti0e act, underta/en by the head ofthe state or of the go0ernment, as the case may be, through which the formalacceptance of the treaty is proclaimed %+ A State may pro0ide in its domesticlegislation the process of rati;cation of a treaty !he consent of the State to bebound by a treaty is e.pressed by rati;cation whenI ?a@ the treaty pro0ides forsuch rati;cation, ?b@ it is otherwise established that the negotiating Statesagreed that rati;cation should be reHuired, ?c@ the representati0e of the State

has signed the treaty sub4ect to rati;cation, or ?d@ the intention of the State tosign the treaty sub4ect to rati;cation appears from the full powers of itsrepresentati0e, or was e.pressed during the negotiation %%

1n our 4urisdiction, the power to ratify is 0ested in the President and not, ascommonly belie0ed, in the legislature !he role of the Senate is limited only togi0ing or withholding its consent, or concurrence, to the rati;cation %-

7ith the rati;cation of the VFA, which is eHui0alent to ;nal acceptance, and withthe e.change of notes between the Philippines and the United States of America,it now becomes obligatory and incumbent on our part, under the principles ofinternational law, to be bound by the terms of the agreement !hus, no less thanSection 6, Article 11 of the Constitution, %3 declares that the Philippines adopts

the generally accepted principles of international law as part of the law of theland and adheres to the policy of peace, eHuality, 4ustice, freedom, cooperationand amity with all nations

As a member of the family of nations, the Philippines agrees to be bound bygenerally accepted rules for the conduct of its international relations 7hile theinternational obligation de0ol0es upon the state and not upon any particularbranch, institution, or indi0idual member of its go0ernment, the Philippines isnonetheless responsible for 0iolations committed by any branch or subdi0ision ofits go0ernment or any oDcial thereof As an integral part of the community of

nations, we are responsible to assure that our go0ernment, Constitution andlaws will carry out our international obligation %' ence, we cannot readilyplead the Constitution as a con0enient e.cuse for non2compliance with ourobligations, duties and responsibilities under international lawchanrob$es0irtua$ $aw $ibrary

(eyond this, Article $+ of the *eclaration of Rights and *uties of States adoptedby the 1nternational aw Commission in $&%& pro0idesI =B0ery State has theduty to carry out in good faith its obligations arising from treaties and othersources of international law, and it may not in0o/e pro0isions in its constitutionor its laws as an e.cuse for failure to perform this duty= %:

BHually important is Article 63 of the Con0ention which pro0ides that =B0erytreaty in force is binding upon the parties to it and must be performed by themin good faith= !his is /nown as the principle of pacta sunt ser0anda whichpreser0es the sanctity of treaties and ha0e been one of the most fundamentalprinciples of positi0e international law, supported by the 4urisprudence ofinternational tribunals %&

8" ERAVB A(USB "F *1SCRB!1"8

1n the instant contro0ersy, the President, in e5ect, is hea0ily faulted fore.ercising a power and performing a tas/ conferred upon him by theConstitution the power to enter into and ratify treaties !hrough thee.pediency of Rule 3- of the Rules of Court, petitioners in these consolidatedcases impute gra0e abuse of discretion on the part of the Chief B.ecuti0e inratifying the VFA, and referring the same to the Senate pursuant to the

pro0isions of Section 6$, Article V11 of the Constitution

"n this particular matter, gra0e abuse of discretion implies such capricious andwhimsical e.ercise of 4udgment as is eHui0alent to lac/ of 4urisdiction, or, whenthe power is e.ercised in an arbitrary or despotic manner by reason of passionor personal hostility, and it must be so patent and gross as to amount to ane0asion of positi0e duty en4oined or to act at all in contemplation of law -

(y constitutional ;at and by the intrinsic nature of his oDce, the President, ashead of State, is the sole organ and authority in the e.ternal a5airs of thecountry 1n many ways, the President is the chief architect of the nationKs foreignpolicy> his =dominance in the ;eld of foreign relations is ?then@ conceded= -$7ielding 0ast powers and inLuence, his conduct in the e.ternal a5airs of the

nation, as 9e5erson describes, is =e.ecuti0e altogether= -6

As regards the power to enter into treaties or international agreements, the

$


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Constitution 0ests the same in the President, sub4ect only to the concurrence ofat least two thirds 0ote of all the members of the Senate 1n this light, thenegotiation of the VFA and the subseHuent rati;cation of the agreement aree.clusi0e acts which pertain solely to the President, in the lawful e.ercise of his0ast e.ecuti0e and diplomatic powers granted him no less than by thefundamental law itself 1nto the ;eld of negotiation the Senate cannot intrude,and Congress itself is powerless to in0ade it -+ ConseHuently, the acts or

4udgment calls of the President in0ol0ing the VFA speci;cally the acts ofrati;cation and entering into a treaty and those necessary or incidental to thee.ercise of such principal acts sHuarely fall within the sphere of hisconstitutional powers and thus, may not be 0alidly struc/ down, much lesscalibrated by this Court, in the absence of clear showing of gra0e abuse of poweror discretion

1t is the CourtKs considered 0iew that the President, in ratifying the VFA and insubmitting the same to the Senate for concurrence, acted within the con;nesand limits of the powers 0ested in him by the Constitution 1t is of no momentthat the President, in the e.ercise of his wide latitude of discretion and in thehonest belief that the VFA falls within the ambit of Section 6$, Article V11 of theConstitution, referred the VFA to the Senate for concurrence under theaforementioned pro0ision Certainly, no abuse of discretion, much less a gra0e,patent and whimsical abuse of 4udgment, may be imputed to the President in hisact of ratifying the VFA and referring the same to the Senate for the purpose ofcomplying with the concurrence reHuirement embodied in the fundamental law1n doing so, the President merely performed a constitutional tas/ and e.ercised aprerogati0e that chieLy pertains to the functions of his oDce B0en if he erred insubmitting the VFA to the Senate for concurrence under the pro0isions of Section6$ of Article V11, instead of Section 6- of Article MV111 of the Constitution, still, thePresident may not be faulted or scarred, much less be ad4udged guilty ofcommitting an abuse of discretion in some patent, gross, and capricious manner

For while it is conceded that Article V111, Section $, of the Constitution hasbroadened the scope of 4udicial inHuiry into areas normally left to the politicaldepartments to decide, such as those relating to national security, it has not

altogether done away with political Huestions such as those which arise in the;eld of foreign relations -% !he igh !ribunalKs function, as sanctioned by ArticleV111, Section $, =is merely ?to@ chec/ whether or not the go0ernmental branch oragency has gone beyond the constitutional limits of its 4urisdiction, not that iterred or has a di5erent 0iew 1n the absence of a showing ?of@ gra0e abuse ofdiscretion amounting to lac/ of 4urisdiction, there is no occasion for the Court toe.ercise its correcti0e power 1t has no power to loo/ into what it thin/s isapparent error --

As to the power to concur with treaties, the Constitution lodges the same withthe Senate alone !hus, once the Senate -3 performs that power, or e.ercises itsprerogati0e within the boundaries prescribed by the Constitution, theconcurrence cannot, in li/e manner, be 0iewed to constitute an abuse of power,

much less gra0e abuse thereof Corollarily, the Senate, in the e.ercise of itsdiscretion and acting within the limits of such power, may not be similarlyfaulted for ha0ing simply performed a tas/ conferred and sanctioned by no less

than the fundamental law

For the role of the Senate in relation to treaties is essentially legislati0e incharacter> -' the Senate, as an independent body possessed of its own eruditemind, has the prerogati0e to either accept or re4ect the proposed agreement,and whate0er action it ta/es in the e.ercise of its wide latitude of discretion,pertains to the wisdom rather than the legality of the act 1n this sense, the

Senate parta/es a principal, yet delicate, role in /eeping the principles ofseparation of powers and of chec/s and balances ali0e and 0igilantly ensuresthat these cherished rudiments remain true to their form in a democraticgo0ernment such as ours !he Constitution thus animates, through this treaty2concurring power of the Senate, a healthy system of chec/s and balancesindispensable toward our nationKs pursuit of political maturity and growth !rueenough, rudimentary is the principle that matters pertaining to the wisdom of alegislati0e act are beyond the ambit and pro0ince of the courts toinHuirechanrob$es 0irtua$ $aw $ibrary

1n ;ne, absent any clear showing of gra0e abuse of discretion on the part ofrespondents, this Court as the ;nal arbiter of legal contro0ersies and staunchsentinel of the rights of the people is then without power to conduct anincursion and meddle with such a5airs purely e.ecuti0e and legislati0e incharacter and nature For the Constitution no less, maps out the distinctboundaries and limits the metes and bounds within which each of the threepolitical branches of go0ernment may e.ercise the powers e.clusi0ely andessentially conferred to it by law

7BRBF"RB, in light of the foregoing disHuisitionKs, the instant petitions arehereby *1S#1SSB*

S" "R*BRB*

*a0ide, 9r, C.J., (ellosillo,


12/22

*" PB!1!1"8BRS AVB S!A8*18E AS C"8CBR8B* C1!1B8S, !AMPABRS, "RBE1SA!"RSN

11

1S !B VFA C"8S1S!B8! 71! !B EB8BRA 7BFARB CAUSB "F !B

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1 li/e to thin/ that the most signi;cant issue is whether the Visiting ForcesAgreement ?VFA@ 0iolates Sec 6-, Art MV111 of the Constitution 1 shall thereforelimit my opinion on this 4ugular issue

!he $&:' Constitution pro0ides in Sec 6-, Art MV111, 0i)I4gcIchanroblescomph

=After the e.piration in $&&$ of the Agreement between the Republic of thePhilippines and the United States of America concerning #ilitary (ases, foreignmilitary bases, troops, or facilities shall not be allowed in the Philippines e.ceptunder a treaty duly concurred in by the Senate and, when the Congress soreHuires, rati;ed by a ma4ority of the 0otes cast by the people in a nationalreferendum held for that purpose, and recogni)ed as a treaty by the othercontracting State=cralaw 0irtua$aw library

!his pro0ision lays down three constitutional reHuisites that must be compliedwith before foreign military bases, troops, or facilities can be allowed inPhilippine territory, namelyI ?$@ their presence should be allowed by a treaty dulyconcurred in by the Philippine Senate> ?6@ when Congress so reHuires, suchtreaty should be rati;ed by a ma4ority of the 0otes cast by the Filipino people ina national referendum held for that purpose> and ?+@ such treaty should berecogni)ed as a treaty by the other contracting party

!o start with, Respondents, with unrelenting resol0e, claim that theseconstitutional reHuirements, are not applicable to the VFA !hey contend that theVFA, as its title implies, contemplates merely temporary 0isits of US militarytroops in Philippine territory, and thus does not come within the pur0iew of Sec6-, Art MV111 of the Constitution !hey assert that this constitutional pro0isionapplies only to the stationing or permanent presence of foreign military troopson Philippine soil since the word =troops= is mentioned along with =bases= and=facilities= which are permanent in nature $ !his assertion would deser0eserious attention if the temporary nature of these 0isits were indeed borne outby the pro0isions of the VFA 1f we turn, howe0er, a heedful eye on the pro0isions

of the VFA as well as the interpretation accorded to it by the go0ernment oDcialscharged with its negotiation and implementation, the temporary nature of the

$6


13/22

0isits would turn out to be a mirage in a desert of 0ague pro0isions of the VFA8either the VFA nor the #utual *efense !reaty between the Republic of thePhilippines and the United States of America 6 to which the VFA refers in itspreamble, + pro0ides the slightest suggestion on the duration of 0isits of USforces in Philippine territory !he 4oint public hearings on the VFA conducted bythe Senate Committee on Foreign Relations and the Senate Committee on8ational *efense and Security gi0e us a /eyhole to the time frame in0ol0ed in

these 0isitschanrob$es 0irtua$ $aw $ibrary

Secretary of Foreign A5airs *omingo Siason, the PhilippineKs signatory to theVFA, testi;ed before the said committees that e0en before the signing of theVFA, Philippine and US troops conducted 4oint military e.ercises in Philippineterritory for two days to four wee/s at the freHuency of ten to twel0e e.ercises ayear !he =(ali/atan=, the largest combined military e.ercise in0ol0ing about+, troops, lasted at an a0erage of three to four wee/s and occurred oncee0ery year or one and a half years % e further declared that the VFAcontemplates the same time line for 0isits of US troops, but argued that e0en ifthese troops conduct ten to twel0e e.ercises a year with each e.ercise lastingfor two to three wee/s, their stay will not be uninterrupted, hence, notpermanent - Secretary of 8ational *efense "rlando S #ercado further testi;edthat the VFA will Jallow 4oint military e.ercises between the Philippine and UStroops on a larger scale than those we had been underta/ing since $&&% 3 Asthe 4oint military e.ercises will be conducted on a larger scale, it would bereasonable to pro4ect an escalation of the duration as well as freHuency of past4oint military e.ercises between Philippine and US troops

!hese 0iews on the temporary nature of 0isits of US troops cannot stand for,clearly, the VFA does not pro0ide for a speci;c and limited period of e5ecti0ity 1tinstead pro0ides an open2ended term in Art 1M, 0i)I = ?t@his agreement shallremain in force until the e.piration of $: days from the date on which eitherparty gi0es the other party notice in writing that it desires to terminate theagreement= 8o magic of semantics will blur the truth that the VFA could be inforce inde;nitely

!he following e.change between Senator AHuilino Q Pimentel, 9r and SecretarySia)on in the public hearings on the VFA is apropos to theissueI4gcIchanroblescomph

=SB8 P1#B8!B 1n other words, this /ind of acti0ities are not designed to lastonly within one year, for e.ample, the 0arious 0isits, but can co0er eternity untilthe treaty is abrogatedN

#R S1A"8 7ell, our onor, this is an e.ercise for the protection of ournational security, and until conditions are such that there is no longer a possiblethreat to our national security, then you will ha0e to continue e.ercising, ouronor, because we cannot ta/e a chance on it

SB8 P1#B8!B So, this will be temporarily permanent, or permanentlytemporaryN

#R S1A"8 Permanently temporary, our onor= '

!he worthiest of wordsmiths cannot always manipulate the meaning of words(lac/Ks aw *ictionary de;nes =temporary= as =that which is to last for a limitedtime only, as distinguished from that which is perpetual or inde;nite in itsduration= : and states that =permanent= is =generally opposed to JtemporaryKbut not always meaning perpetual= & !he de;nitions of =temporary= and

=permanent= in (ou0ierKs aw *ictionary are of similar importI temporary is =thatwhich is to last for a limited time= $ while permanent =does not alwaysembrace the idea of absolute perpetuity= $$ (y these de;nitions, e0en thecontingency that the Philippines may abrogate the VFA when there is no longerany threat to our national security does not ma/e the 0isits of US troopstemporary, nor do short interruptions in or gaps between 4oint military e.ercisescar0e them out from the de;nition of =permanent= as permanence does notnecessarily contemplate absolute perpetuity

1t is against this tapestry wo0en from the realities of the past and a 0ision of thefuture 4oint military e.ercises that the Court must draw a line betweentemporary 0isits and permanent stay of US troops !he absence in the VFA ofthe slightest suggestion as to the duration of 0isits of US troops in Philippineterritory, coupled with the lac/ of a limited term of e5ecti0ity of the VFA itself4ustify the interpretation that the VFA allows permanent, not merely temporary,presence of US troops on Philippine soil Following Secretary Sia)onKstestimony, if the 0isits of US troops could last for four wee/s at the most and atthe ma.imum of twel0e times a year for an inde;nite number of years, then byno stretch of logic can these 0isits be characteri)ed as temporary because infact, the US troops could be in Philippine territory +3- days a year for - years longer than the duration of the $&%' RP2US #ilitary (ases Agreement $6which e.pired in $&&$ and which, without Huestion, contemplated permanentpresence of US bases, facilities, and troops

!o be sure, e0en former Secretary of 9ustice, Sera;n Cue0as, admitted in thesame public hearings that the sub4ect matter of the VFA, ie, the 0isits andacti0ities of US troops in Philippine territory, parta/es of a permanent character

e declared with clarityI4gcIchanroblescomph

=#R CUBVAS 7hy we considered this as a treaty is because the sub4ecttherein treated had some character of permanence> and secondly, there is achange insofar as some of our laws are concerned= $+

!hus, regardless of whether Sec 6-, Art MV111 of the Constitution contemplatespermanent presence of foreign military troops alone, or temporary presence aswell, the VFA comes within its pur0iew as it allows the permanent presence ofUS troops on Philippine soil Contrary to respondentsK allegation, thedetermination of the permanent nature of 0isits of US troops under the VFA isan issue ripe for ad4udication since Sec 6- of Art MV111 spea/s of the manner bywhich US troops may be allowed to enter Philippine territory 7e need not wait

and see, therefore, whether the US troops will actually conduct militarye.ercises on Philippine soil on a permanent basis before ad4udicating this issue7hat is at issue is whether the VFA allows such permanent presence of US

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troops in Philippine territory

!o determine compliance of the VFA with the reHuirements of Sec 6-, Art MV111of the Constitution, it is necessary to ascertain the intent of the framers of theConstitution as well as the will of the Filipino people who rati;ed thefundamental law !his e.ercise would ine0itably ta/e us bac/ to the period in ourhistory when US military presence was entrenched in Philippine territory with

the establishment and operation of US #ilitary (ases in se0eral parts of thearchipelago under the $&%' RP2US #ilitary (ases Agreement As articulated byConstitutional Commissioner (las F "ple in the $&:3 Constitutional Commissiondeliberations on this pro0ision, the $&%' RP2US #ilitary (ases Agreement wasrati;ed by the Philippine Senate, but not by the United States Senate 1n theeyes of Philippine law, therefore, the #ilitary (ases Agreement was a treaty, butby the laws of the United States, it was a mere e.ecuti0e agreement $% !hisasymmetry in the legal treatment of the #ilitary (ases Agreement by the twocountries was belie0ed to be a slur to our so0ereignty !hus, in the debateamong the Constitutional Commissioners, the unmista/able intention of thecommission emerged that this anomalous asymmetry must ne0er be repeated$- !o correct this historical aberration, Sec 6-, Art MV111 of the ConstitutionreHuires that the treaty allowing the presence of foreign military bases, troops,and facilities should also be =recogni)ed as a treaty by the other contacting

party= 1n plain language, recognition of the United States as the othercontracting party of the VFA should be by the US President with the ad0ice andconsent of the US Senate $3

!he following e.changes manifest this intentionIchanrob$es 0irtua$ $aw $ibrary

=#R "PB 7ill either of the two gentlemen yield to 4ust one Huestion forclari;cationN 1s there anything in this formulation, whether that of Commissioner(ernas or of Commissioner Romulo, that will pre0ent the Philippine go0ernmentfrom abrogating the e.isting bases agreementN

FR (BR8AS !o my understanding, none

#R R"#U" 1 concur with Commissioner (ernas

#R "PB 1 was 0ery /een to put this Huestion because 1 had ta/en the positionfrom the beginning and this is embodied in a resolution ;led byCommissioners 8ati0idad, #aambong and Regalado that it is 0ery importantthat the go0ernment of the Republic of the Philippines be in a position toterminate or abrogate the bases agreement as one of the options we ha0eac/nowledged starting at the committee le0el that the bases agreement wasrati;ed by our Senate> it is a treaty under Philippine law (ut as far as theAmericans are concerned, the Senate ne0er too/ cogni)ance of this andtherefore, it is an e.ecuti0e agreement !hat creates a wholly unacceptableasymmetry between the two countries !herefore, in my opinion, the right stepto ta/e, if the go0ernment of our country will deem it in the national interest to

terminate this agreement or e0en to renegotiate it, is that we must begin with aclean slate> we should not be burdened by the Laws of the $&%' #ilitary (asesAgreement

#R R"#U" #adam President, 1 thin/ the two phrases in the (ernasformulation ta/e care of Commissioner "pleKs concerns

!he ;rst says =BMCBP! U8*BR !B !BR#S "F A !RBA!= !hat means that if it isto be renegotiated, it must be under the terms of a new treaty !he second is theconcluding phrase which saysI =A8* RBC"E81B* AS A !RBA! ( !B "!BR

C"8!RAC!18E S!A!B=cralaw 0irtua$aw library

x x x

#R SUARB 1s the proposal prospecti0e and not retroacti0e in characterN

FR (BR8AS es, it is prospecti0e because it does not touch the 0alidity of thepresent agreement owe0er, if a decision should be arri0ed at that the presentagreement is in0alid, then e0en prior to $&&$, this becomes operati0e rightaway

#R SUARB 1n other words, we do not impress the pre0ious agreements with a0alid character, neither do we say that they are null and 0oid ab initio as claimedby many of us here

FR (BR8AS !he position 1 hold is that it is not the function of this Commissionto pass 4udgment on the 0alidity or in0alidity of the subsisting agreement

#R SUARB the proposal reHuires recognition of this treaty by the othercontracting nation ow would that recognition be e.pressed by that othercontracting nationN !hat is in accordance with their constitutional or legislati0eprocess, 1 assume

FR (BR8AS As Commissioner Romulo indicated, since this certainly would referonly to the United States, because it is only the United States that would ha0ethe possibility of being allowed to ha0e treaties here, then we would ha0e to

reHuire that the Senate of the United States concur in the treaty because underAmerican constitutional law, there must be concurrence on the part of theSenate of the United States to conclude treaties

x x x

FR (BR8AS 7hen 1 say that the other contracting state must recogni)e it as atreaty, by that 1 mean it must perform all the acts reHuired for the agreement toreach the status of a treaty under their 4urisdiction= ?Emphasis supplied@ $'

1n ascertaining the VFAKs compliance with the constitutional reHuirement that itbe =recogni)ed as a treaty by the other contracting state,= it is crystal clear from

the abo0e e.changes of the Constitutional Commissioners that the yardstic/should be US constitutional law 1t is therefore apropos to ma/e a more in depth

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study of the US PresidentKs power to enter into e.ecuti0e agreements underUS constitutional law

Sec 6, Art 11, Clause 6 of the US Constitution pro0ides that the President =shallha0e Power, by and with the Ad0ice and Consent of the Senate, to ma/e!reaties, pro0ided two thirds of the Senators present concur= !he USConstitution does not de;ne =treaties= 8e0ertheless, the accepted de;nition of

a =treaty= is that of =an agreement between two or more states or internationalorgani)ations that is intended to be legally binding and is go0erned byinternational law= $: Although the United States did not formally ratify theVienna Con0ention on the aw of !reaties, its de;nition of a treaty has beenapplied by US courts and the State *epartment has stated that the ViennaCon0ention represents customary international law $& !he Vienna Con0entionde;nes a treaty as =an international agreement concluded between States inwritten form and go0erned by international law= 6 1t has been obser0ed thatthis de;nition is broader than the sense in which =treaty= is used in the USConstitution 1n US practice, a =treaty= is only one of four types of internationalagreements, namelyI Article 11 treaties, e.ecuti0e agreements pursuant to atreaty, congressional2e.ecuti0e agreements, and sole e.ecuti0e agreements 6$

!he term =e.ecuti0e agreement= is used both colloHuially and in scholarly and

go0ernmental writings as a con0enient catch2all to subsume all internationalagreements intended to bind the United States and another go0ernment, otherthan those which recei0e consent of two2thirds of the US Senate 66 !he USConstitution does not e.pressly confer authority to ma/e these e.ecuti0eagreements, hence the authority to ma/e them, their scope, and legal forceha0e been the sub4ect of a long2ongoing debate 6+ !his, notwithstanding,e.ecuti0e agreements ha0e grown to be a primary instrument of foreign policy inthe United states 1n $':&2$:+&, the United States concluded 3 treaties andonly 6' e.ecuti0e agreements 1n $&+2$&+&, the United States entered into $%6treaties and $%% e.ecuti0e agreements 1n $&%2$&%&, $$3 treaties and &$&e.ecuti0e agreements were concluded by the United States From $&:2$&::,the United States entered into $+3 treaties and +,&% e.ecuti0e agreements 1nsum, by $&::, there were $6,'': e.ecuti0e agreements as opposed to $,%'3

treaties, accounting for about & of the international agreements concluded bythe United States 6%

!he upsurge in the use of e.ecuti0e agreements in the post 7orld 7ar 11 periodmay be attributed to se0eral factors President Fran/lin Roose0elt set aprecedent for the more recent presidents by, for instance, completing the*estroyer2for2(ases deal of $&% with an e.ecuti0e agreement President arryS !ruman li/ewise concluded the Potsdam Agreement by e.ecuti0e agreement!he US Presidents also committed military missions in onduras and B$Sal0ador in the $&-Ks> pledged security to !ur/ey, 1ran, and Pa/istan> acHuiredpermission from the (ritish to use the island of *iego Earcia for militarypurposes in the $&3Ks> and established a military mission in 1ran in $&'%, all byway of e.ecuti0e agreements 6- US Supreme Court decisions aDrming the

0alidity of e.ecuti0e agreements ha0e also contributed to the e.plosi0e growthin their usage 63 Another factor that accelerated its use was the foreign policycooperation between Congress and the e.ecuti0e as e.pressed in the postwar

refrain that =politics must end at the waterKs edge= 6' !he fourth factor is thee.pansion of e.ecuti0e institutions including foreign policy machinery andinformation 6: !he ;fth factor is the Cold 7ar which put the United States in a=constant state of emergency= which reHuired e.pediency in decisions andactions regarding the use of force or diplomacy ast but not the least, thenuclear weapons race and instantaneous global communication madecentrali)ed foreign policy machinery under the US President necessary 6&

!hese e.ecuti0e agreements which ha0e grown to be the primary instrument ofUS foreign policy may be classi;ed into three types, namelyIchanrob$es 0irtua$$aw $ibrary

?$@ !reaty2authori)ed e.ecuti0e agreements, ie, agreements made by thePresident pursuant to authority conferred in a prior treaty> +

?6@ Congressional2e.ecuti0e agreements, ie, agreements either ?a@ negotiatedby the President with prior Congressional authori)ation or enactment> or ?b@con;rmed by both ouses of Congress after the fact of negotiation> +$ and

?+@ Presidential or sole e.ecuti0e agreements, ie agreements made by thePresident based on his e.clusi0e presidential powers, such as the power as

commander2in2chief of the armed forces pursuant to which he conducts militaryoperations with US allies, or his power to recei0e ambassadors and recogni)eforeign go0ernments +6

!his classi;cation is important as the di5erent types of e.ecuti0e agreementsbear distinctions in terms of constitutional basis, sub4ect matter, and legale5ects in the domestic arena For instance, treaty2authori)ed e.ecuti0eagreements do not pose constitutional problems as they are generally acceptedto ha0e been pre2appro0ed by the Senate when the Senate consented to thetreaty which authori)ed the e.ecuti0e to enter into e.ecuti0e agreements>another 0iew supporting its acceptance is that the Senate delegated to thePresident the authority to ma/e the e.ecuti0e agreement ++ 1n comparison, theconstitutionality of congressional2e.ecuti0e agreements has pro0o/ed debate

among legal scholars "ne 0iew, espoused by interpreti0ists such as Bdwin(orchard, holds that all international agreements must be strictly in accordancewith Sec 6, Art 11 of the US Constitution, and thus congressional2e.ecuti0eagreements are constitutionally in0alid According to them, allowingcongressional2e.ecuti0e agreements would enhance the power of the Presidentas well as of the ouse of Representati0es, in utter 0iolation of the intent of theframers of the US Constitution +% !he opposite school of thought, led by #yerS #c*ougal and Asher ans, holds that congressional2e.ecuti0e agreementsand treaties are interchangeable, thus, such agreements are constitutional!hese non2interpreti0ists buttress their stance by leaning on the constitutionalclause that prohibits states, without consent of Congress, from =enter?ing@ intoany Agreement or Compact with another State, or with a Foreign Power= (yma/ing reference to international agreements other than treaties, these scholars

argue that the framers of the Constitution intended international agreements,other than treaties, to e.ist !his school of thought generally opposes the=mechanical, ;liopietistic theory, ?which@ purports to regard the words of the

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Constitution as timeless absolutes= +- and gi0es emphasis to the necessity ande.pediency of congressional2e.ecuti0e agreements in modern foreign a5airs +3Finally, sole e.ecuti0e agreements which account for a relati0ely smallpercentage of e.ecuti0e agreements are the most constitutionally problematicsince the system of chec/s and balances is inoperati0e when the Presidententers into an e.ecuti0e agreement with neither the SenateKs or CongressKconsent !his last type of e.ecuti0e agreement draws authority upon thePresidentKs enumerated powers under Article 11 of the US Constitution, such asthe PresidentKs power as Commander2in2Chief of the US army and na0y +'

1 respectfully submit that, using these three types of e.ecuti0e agreements asbases for classi;cation, the VFA would not fall under the category of ane.ecuti0e agreement made by the president pursuant to authority conferred in aprior treaty because although the VFA ma/es reference to the #utual *efense!reaty in its Preamble, +: the #utual *efense !reaty itself does not conferauthority upon the US President to enter into e.ecuti0e agreements inimplementation of the !reaty 1ssues ha0e occasionally arisen about whether ane.ecuti0e agreement was entered into pursuant to a treaty !hese issues,howe0er, in0ol0ed mere treaty interpretation +& 1n 7ilson 0 Eirard, +-% US -6%?$&-'@, the US Supreme Court had occasion to interpret Art 111 of the Security!reaty (etween the United States of America and 9apan which stated that,= ?t@he

conditions which shall go0ern the disposition of armed forces of the Unitedstates of America in and about 9apan shall be determined by administrati0eagreements between the two Eo0ernments= % Pursuant to this pro0ision in thetreaty, the e.ecuti0e entered into an administrati0e agreement co0ering, amongother matters, 4urisdiction of the United States o0er o5enses committed in 9apanby members of the US armed forces !he US Supreme Court recogni)ed the0alidity of the Administrati0e Agreement as it was concluded by the Presidentpursuant to the authority conferred upon him by Art 111 of the Security !reatybetween 9apan and the United states to ma/e administrati0e agreementsbetween the two go0ernments concerning= ?t@he conditions which shall go0ernthe disposition of armed forces of the United states of America in and about9apan=cralaw 0irtua$aw library

Respondents boldly claim that the VFA is authori)ed by Art 11 of the RP2US#utual *efense !reaty which pro0ides that,= ?i@n order more e5ecti0ely toachie0e the ob4ecti0e of this !reaty, the Parties separately and 4ointly by self2help and mutual aid will maintain and de0elop their indi0idual and collecti0ecapacity to resist armed attac/= %$ !he alleged authori)ation is not as directand uneHui0ocal as Art 111 of the Security !reaty (etween the US and 9apan,hence it would be precarious to assume that the VFA deri0es authori)ation fromthe #utual *efense !reaty !he precariousness is heightened by the fact thatwhen the US Senate rati;ed the Agreement (etween the Parties to the 8orthAtlantic !reaty Regarding the Status of !heir Forces %6 which was concludedpursuant to the 8orth Atlantic !reaty ?8A!"@, %+ the Senate included in itsinstrument of rati;cation statements on matters of 4urisdiction o0er US forcesstationed abroad, among which was an admonition that the AgreementKs

pro0isions on criminal 4urisdiction which ha0e similar features as the VFA, do notconstitute a precedent for future agreements 7e can reasonably gather fromthe US SenateKs statements that criminal 4urisdiction o0er US forces stationed

abroad is a matter of Senate concern, and thus Senate authori)ation for thePresident to enter into agreements touching upon such 4urisdictional matterscannot so easily be assumed

8either does the VFA fall under the category of a Congressional B.ecuti0eAgreement as it was not concluded by the US President pursuant toCongressional authori)ation or enactment nor has it been con;rmed by the USCongress

At best, the VFA would be more a/in to a sole or presidential e.ecuti0eagreement which would be 0alid if concluded on the basis of the US PresidentKse.clusi0e power under the US Constitution Respondents argue that e.cept forthe Status of Forces Agreement ?S"FA@ entered into pursuant to the 8A!", theUnited States, by way of e.ecuti0e agreements, has entered into ': Status ofForces Agreements ?S"FA@ which e.tend pri0ileges and immunities to US forcesstationed abroad, %% similar to the pro0isions of the VFA Respondents ha0efailed, howe0er, to Hualify whether these e.ecuti0e agreements are solee.ecuti0e agreements or were concluded pursuant to Congressionalauthori)ation or were authori)ed by treaty !his detail is important in 0iew of theabo0e discussion on the sense of the Senate on criminal 4urisdiction o0er USforces stationed abroad

1t will contribute to the elucidation of the legal status of the VFA under US law ifwe compare the legal force of sole e.ecuti0e agreements and of treaties Underinternational law, treaties and e.ecuti0e agreements eHually bind the UnitedStates %- 1f there is any distinction between treaties and e.ecuti0e agreements,it must be found in US constitutional law %3 !he distinctions, if any, betweenthe legal force of treaties and e.ecuti0e agreements on the domestic plane maybe treated on three le0els, namely, 0is2a20isI ?$@ state law> ?6@ acts of Congressand treaties> and ?+@ the US Constitution

!he Supremacy Clause of the US Constitution pro0idesI4gcIchanroblescomph

=!his Constitution, and the aw of the United States which shall be made in

pursuance thereof> and all !reaties made, or which shall be made, under theAuthority of the United States, shall be the supreme aw of the and> and the9udges in e0ery State shall be bound thereby, any !hing in the Constitution oraws of any state to the Contrary notwithstanding %'

1t is well2settled that this clause pro0ides the constitutional basis for thesuperiority of a treaty o0er state law !hus, the 7arsaw Con0ention to which theUnited States is a signatory preempts the California law on airline liability %:!he US Supreme Court has ruled in unmista/able terms that a treaty en4oyssupremacy o0er state law, 0i)I4gcIchanroblescomph

=Plainly, the e.ternal powers of the United states are to be e.ercised withoutregard to state laws or policies !he supremacy of a treaty in this respect has

been recogni)ed from the beginning #r #adison, in the Virginia Con0ention,said that if a treaty does not supersede e.isting state laws, as far as theycontra0ene its operation, the treaty would be ine5ecti0e =!o counter2act it by

$3


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the supremacy of the state laws, would bring on the Union the 4ust charge ofnational per;dy, and in0ol0e us in war= + Blliot, *ebates, -$- this rule inrespect of treaties is established by the e.press language of cl 6, Art 3, of theConstitution = ?Emphasis supplied@ %&

1t is also generally conceded that sole e.ecuti0e agreements are supreme o0erstate law and policy !wo cases decided by the US Supreme Court support this0iew

!he ;rst of these two cases, United States 0 (elmont, - in0ol0ed the it0ino0Assignment, a sole e.ecuti0e agreement e.ecuted between the United statesand the So0iet Eo0ernment 1n $&$:, the So0iet go0ernment, by laws anddecrees, nationali)ed, among others, a Russian corporation, and appropriated itsassets including a sum of money deposited with (elmont, a pri0ate ban/er doingbusiness in 8ew or/ !he sum of money remained Russian property until $&++,at which time the So0iet go0ernment released and assigned to the United Statesall amounts due the So0iet go0ernment from American nationals, including thedeposit account of the Russian corporation with (elmont !he assignment, better/nown as the it0ino0 Assignment, was e5ected by an e.change of diplomaticcorrespondence between the So0iet go0ernment and the United States to bringabout a ;nal settlement of the claims and counter2claims between the So0iet

go0ernment and the United States Coincident with the assignment, the USPresident recogni)ed the So0iet Eo0ernment and normal diplomatic relationswere established between the two go0ernments -$

Upon demand duly made by the United States, the e.ecutors of (elmontKs willfailed and refused to pay the sum of money deposited by the Russiancorporation with (elmont !he United States thus ;led a suit in a federal districtcourt to reco0er the sum of money !he court below held that the situs of theban/ deposit was within the State of 8ew or/ and not within So0iet territory!hus, the nationali)ation decree, if enforced, would amount to an act ofcon;scation which was contrary to the controlling public policy of 8ew or/ !heUS Supreme Court, howe0er, held that no state policy could pre0ail against theit0ino0 Assignment -6 1t ruled as followsIchanrob$es 0irtua$ $aw $ibrary

=!he assignment and the agreements in connection therewith did not, as in thecase of treaties, as that term is used in the treaty ma/ing clause of theConstitution ?Sec 6, Art 6@, reHuire the ad0ice and consent of the Senate

A treaty signi;es =a compact made between two or more independent nationswith a 0iew to the public welfare= ( Altman O Co 0 United states, 66% US-:+, 3, -3 ed :&%, &$, +6 S Ct -&+ (ut an international compact, as thiswas, is not always a treaty which reHuires the participation of the Senate !hereare many such compacts, of which a protocol, a modus 0i0endi, a postalcon0ention, and agreements li/e that now under consideration are illustrations=?Emphasis supplied@ -+

"n the supremacy of e.ecuti0e agreements o0er state law, it ruled asfollowsI4gcIchanroblescomph

=Plainly, the e.ternal powers of the United states are to be e.ercised withoutregard to state laws or policies !he supremacy of a treaty in this respect hasbeen recogni)ed from the beginning #r #adison, in the Virginia Con0ention,said that if a treaty does not supersede e.isting state laws, as far as theycontra0ene its operation, the treaty would be ine5ecti0e =!o counter2act it bythe supremacy of the state laws, would bring on the Union the 4ust charge ofnational per;dy, and in0ol0e us in war= + Blliot, *ebates, -$- And while thisrule in respect of treaties is established by the e.press language of cl 6, Art 3,of the Constitution, the same rule would result in the case of all internationalcompacts and agreements from the 0ery fact that complete power o0erinternational a5airs is in the national go0ernment and is not and

bayan v. executive secretary

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