lim v exec sec

7/27/2019 lim v exec sec

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EN BANC[ G.R. No. 151445. April 11, 2002 ]

ARTHUR D. LIM and PAULINO R. ERSANDO,

petitioners, vs. HONORABLE EXECUTIVE SECRETARYas alter ego of HER EXCELLENCEY GLORIAMACAPAGAL-ARROYO, and HONORABLE ANGELOREYES in his capacity as Secretary of NationalDefense, respondents.

SANLAKAS and PARTIDO NG MANGGAGAWA,

petitioners-intervenors, vs. GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES,respondents.

D E C I S I O N

DE LEON, JR., J.:

This case involves a petition for certiorari andprohibition as well as a petition-in-intervention,praying that respondents be restrained fromproceeding with the so-called "Balikatan 02-1" andthat after due notice and hearing, that judgment berendered issuing a permanent writ of injunctionand/or prohibition against the deployment of U.S.troops in Basilan and Mindanao for being illegal andin violation of the Constitution.

The facts are as follows:

Beginning January of this year 2002, personnel fromthe armed forces of the United States of Americastarted arriving in Mindanao to take part, inconjunction with the Philippine military, in "Balikatan02-1." These so-called "Balikatan" exercises are thelargest combined training operations involvingFilipino and American troops. In theory, they are asimulation of joint military maneuvers pursuant to


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be set up for use by RP andUS Forces during theExercise.

4. The Exercise shall beimplemented jointly by RPand US Exercise Co-Directorsunder the authority of theChief of Staff, AFP. In noinstance will US Forcesoperate independently during

field training exercises (FTX).AFP and US Unit Commanderswill retain command overtheir respective forces underthe overall authority of theExercise Co-Directors. RP andUS participants shall comply

with operational instructionsof the AFP during the FTX.

5. The exercise shall beconducted and completedwithin a period of not morethan six months, with theprojected participation of 660US personnel and 3,800 RPForces. The Chief of Staff, AFPshall direct the Exercise Co-Directors to wind up andterminate the Exercise andother activities within the sixmonth Exercise period.

6. The Exercise is a mutualcounter-terrorism advising,assisting and trainingExercise relative to Philippineefforts against the ASG, and


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will be conducted on theIsland of Basilan. Furtheradvising, assisting andtraining exercises shall be

conducted in Malagutay andthe Zamboanga area. Relatedactivities in Cebu will be forsupport of the Exercise.

7. Only 160 US Forces organizedin 12-man Special Forces

Teams shall be deployed withAFP field, commanders. TheUS teams shall remain at theBattalion Headquarters and,when approved, Company

Tactical headquarters wherethey can observe and assess

the performance of the AFPForces.

8. US exercise participants shallnot engage in combat,without prejudice to theirright of self-defense.

9. These terms of Reference arefor purposes of this Exerciseonly and do not createadditional legal obligationsbetween the US Governmentand the Republic of thePhilippines.

II. EXERCISE LEVEL

1. TRAINING


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a. The Exercise shallinvolve the conduct ofmutual militaryassisting, advising and

training of RP and USForces with the primaryobjective of enhancingthe operationalcapabilities of bothforces to combatterrorism.

b. At no time shall USForces operateindependently within RPterritory.

c. Flight plans of all

aircraft involved in theexercise will complywith the local air trafficregulations.

2. ADMINISTRATION &LOGISTICS

a. RP and US participantsshall be given a countryand area briefing at thestart of the Exercise.

This briefing shallacquaint US Forces onthe culture andsensitivities of theFilipinos and theprovisions of the VF A.

The briefing shall alsopromote the fullcooperation on the part


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of the RP and USparticipants for thesuccessful conduct ofthe Exercise.

b. RP and US participatingforces may share, inaccordance with theirrespective laws andregulations, in the useof their resources,

equipment and otherassets. They will usetheir respectivelogistics channels.

c. Medical evaluation shallbe jointly planned and

executed utilizing RPand US assets andresources.

d. Legal liaison officersfrom each respectiveparty shall beappointed by theExercise Directors.

3. PUBLIC AFFAIRS

a. Combined RP-USInformation Bureausshall be established atthe Exercise Directoratein Zamboanga City andat GHQ, AFP in CampAguinaldo, Quezon City.


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b. Local media relationswill be the concern ofthe AFP and all publicaffairs guidelines shall

be jointly developed byRP and US Forces.

c. Socio-EconomicAssistance Projectsshall be planned andexecuted jointly by RP

and US Forces inaccordance with theirrespective laws andregulations, and inconsultation withcommunity and localgovernment officials.

Contemporaneously, Assistant Secretary forAmerican Affairs Minerva Jean A. Falcon and UnitedStates Charge d' Affaires Robert Fitts signed theAgreed Minutes of the discussion between the Vice-President and Assistant Secretary Kelly.4

Petitioners Lim and Ersando present the followingarguments:

I

THE PHILIPPINES AND THE UNITEDSTATES SIGNED THE MUTUAL DEFENSE

TREATY (MDT) in 1951 TO PROVIDEMUTUAL MILITARY ASSIST ANCE INACCORDANCE WITH THE'CONSTITUTIONAL PROCESSE-S' OF EACHCOUNTRY ONLY IN THE CASE OF ANARMED ATTACK BY AN EXTERNAL


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AGGRESSOR, MEANING A THIRDCOUNTRY AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINA TION

CAN IT BE SAID THAT THE ABU SAYYAFBANDITS IN BASILAN CONSTITUTE ANEXTERNAL ARMED FORCE THAT HASSUBJECT THE PHILIPPINES TO AN ARMEDEXTERNAL ATTACK TO WARRANT U.S.MILITARY ASSISTANCE UNDER THE MDTOF 1951.

II

NEITHER DOES THE VFA OF 1999AUTHORIZE AMERICAN SOLDIERS TOENGAGE IN COMBAT OPERATIONS INPHILIPPINE TERRITORY, NOT EVEN TO

FIRE BACK "IF FIRED UPON".

Substantially the same points are advanced bypetitioners SANLAKAS and PARTIDO.

In his Comment, the Solicitor General points toinfirmities in the petitions regarding, inter alia, Limand Ersando's standing to file suit, the prematurity ofthe action, as well as the impropriety of availing ofcertiorari to ascertain a question of fact. Anent theirlocus standi, the Solicitor General argues that first,they may not file suit in their capacities as, taxpayersinasmuch as it has not been shown that "Balikatan02-1 " involves the exercise of Congress' taxing orspending powers. Second, their being lawyers doesnot invest them with sufficient personality to initiatethe case, citing our ruling in Integrated Bar of thePhilippines v. Zamora.5 Third, Lim and Ersando havefailed to demonstrate the requisite showing of directpersonal injury. We agree.


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It is also contended that the petitioners are indulgingin speculation. The Solicitor General is of the viewthat since the Terms of Reference are clear as to theextent and duration of "Balikatan 02-1," the issues

raised by petitioners are premature, as they arebased only on a fear of future violation of the Termsof Reference. Even petitioners' resort to a specialcivil action for certiorari is assailed on the groundthat the writ may only issue on the basis ofestablished facts.

Apart from these threshold issues, the SolicitorGeneral claims that there is actually no question ofconstitutionality involved. The true object of theinstant suit, it is said, is to obtain an interpretation ofthe V FA. The Solicitor General asks that we accorddue deference to the executive determination that"Balikatan 02-1" is covered by the VFA, considering

the President's monopoly in the field of foreignrelations and her role as commander-in-chief of thePhilippine armed forces.

Given the primordial importance of the issueinvolved, it will suffice to reiterate our view on thispoint in a related case:

Notwithstanding, in view of theparamount importance and theconstitutional significance of the issuesraised in the petitions, this Court, in theexercise of its sound discretion, brushesaside the procedural barrier and takescognizance of the petitions, as we havedone in the early Emergency PowersCases, where we had occasion to rule:

'x x x ordinary citizens andtaxpayers were allowed to questionthe constitutionality of several


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executive orders issued byPresident Quirino although theywere involving only an indirect andgeneral interest shared in common

with the public. The Courtdismissed the objection that theywere not proper parties and ruledthat 'transcendental importance tothe public of these cases demandsthat they be settled promptly anddefinitely, brushing aside, if we

must, technicalities of procedure.'We have since then applied theexception in many other cases.[citation omitted]

This principle was reiterated in the subsequent casesof Gonzales vs. COMELEC, Daza vs. Singson, and

Basco vs. Phil, Amusement and Gaming Corporation,where we emphatically held:

Considering however the importance tothe public of the case at bar, and inkeeping with the Court's duty, under the1987 Constitution, to determine whetheror not the other branches of thegovernment have kept themselves withinthe limits of the Constitution and the lawsthat they have not abused the discretiongiven to them, the Court has brushedaside technicalities of procedure and hastaken cognizance of this petition. xxx'

Again, in the more recent case of Kilosbayan vs.Guingona, Jr., this Court ruled that in cases oftranscendental importance, the Court may relax thestanding requirements and allow a suit to prospereven where there is no direct injury to the partyclaiming the right of judicial review.


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Although courts generally avoid having to decide aconstitutional question based on the doctrine ofseparation of powers, which enjoins upon the

department of the government a becoming respectfor each other's act, this Court nevertheless resolvesto take cognizance of the instant petition.6

Hence, we treat with similar dispatch the generalobjection to the supposed prematurity of the action.At any rate, petitioners' concerns on the lack of any

specific regulation on the latitude of activity USpersonnel may undertake and the duration of theirstay has been addressed in the Terms of Reference.

The holding of "Balikatan 02-1" must be studied inthe framework of the treaty antecedents to which thePhilippines bound itself. The first of these is the

Mutual Defense Treaty (MDT, for brevity). The MDThas been described as the "core" of the defenserelationship between the Philippines and itstraditional ally, the United States. Its aim is toenhance the strategic and technological capabilitiesof our armed forces through joint training with itsAmerican counterparts; the "Balikatan" is the largestsuch training exercise directly supporting the MDT'sobjectives. It is this treaty to which the V FA advertsand the obligations thereunder which it seeks toreaffirm.

The lapse of the US-Philippine Bases Agreement in1992 and the decision not to renew it created avacuum in US-Philippine defense relations, that is,until it was replaced by the Visiting ForcesAgreement. It should be recalled that on October 10,2000, by a vote of eleven to three, this Court upheldthe validity of the VFA.7 The V FA provides the"regulatory mechanism" by which "United Statesmilitary and civilian personnel [may visit] temporarily


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Article 31General rule of interpretation

1. A treaty shall be interpreted ingood faith ill accordance with theordinary meaning to be given tothe tenus of the treaty in theircontext and in the light of its objectand purpose.

2. The context for the purpose of theinterpretation of a treaty shallcomprise, in addition to the text,including its preamble andannexes:

(a) any agreement relating to the

treaty which was madebetween all the parties inconnexion with the conclusionof the treaty;

(b) any instrument which wasmade by one or more partiesin connexion with theconclusion of the treaty andaccepted by the other partiesas an instrument related tothe party .

3. There shall be taken into account,together with the context:

(a) any subsequent agreementbetween the partiesregarding the interpretationof the treaty or theapplication of its provisions;


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(b) any subsequent practice inthe application of the treatywhich establishes the

agreement of the partiesregarding its interpretation;

(c) any relevant rules of international law applicable inthe relations between theparties.

4. A special meaning shall be given toa term if it is established that theparties so intended.

Article 32Supplementary means of interpretation

Recourse may be had to supplementarymeans of interpretation, including thepreparatory work of the treaty and thecircumstances of its conclusion, in orderto confirm the meaning resulting fromthe application of article 31, or todetermine the meaning when theinterpretation according to article 31 :

(a) leaves the meaning ambiguous orobscure; or

(b) leads to a result which is manifestlyabsurd unreasonable.

It is clear from the foregoing that thecardinal rule of interpretation mustinvolve an examination of the text, whichis presumed to verbalize the parties'intentions. The Convention likewise


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dictates what may be used as aids todeduce the meaning of terms, which itrefers to as the context of the treaty, aswell as other elements may be taken into

account alongside the aforesaid context.As explained by a writer on theConvention ,

[t]he Commission's proposals (whichwere adopted virtually without change bythe conference and are now reflected in

Articles 31 and 32 of the Convention)were clearly based on the view that thetext of a treaty must be presumed to bethe authentic expression of the intentionsof the parties; the Commissionaccordingly came down firmly in favourof the view that 'the starting point of

interpretation is the elucidation of themeaning of the text, not an investigationab initio into the intentions of theparties'. This is not to say that thetravauxpreparatoires of a treaty , or thecircumstances of its conclusion, arerelegated to a subordinate, and whollyineffective, role. As Professor Briggspoints out, no rigid temporal prohibitionon resort to travaux preparatoires of atreaty was intended by the use of thephrase 'supplementary means ofinterpretation' in what is now Article 32 ofthe Vienna Convention. The distinctionbetween the general rule of interpretation and the supplementarymeans of interpretation is intendedrather to ensure that the supplementarymeans do not constitute an alternative,autonomous method of interpretationdivorced from the general rule.1O


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The Terms of Reference rightly fall within the contextof the VFA.

After studied reflection, it appeared farfetched thatthe ambiguity surrounding the meaning of theword .'activities" arose from accident. In our view, itwas deliberately made that way to give both partiesa certain leeway in negotiation. In this manner,visiting US forces may sojourn in Philippine territoryfor purposes other than military. As conceived, the

joint exercises may include training on newtechniques of patrol and surveillance to protect thenation's marine resources, sea search-and-rescueoperations to assist vessels in distress, disaster reliefoperations, civic action projects such as the buildingof school houses, medical and humanitarianmissions, and the like.

Under these auspices, the VFA gives legitimacy tothe current Balikatan exercises. It is only logical toassume that .'Balikatan 02-1," a "mutual anti-terrorism advising, assisting and training exercise,"falls under the umbrella of sanctioned or allowableactivities in the context of the agreement. Both thehistory and intent of the Mutual Defense Treaty andthe V FA support the conclusion that combat-relatedactivities -as opposed to combat itself -such as theone subject of the instant petition, are indeedauthorized.

That is not the end of the matter, though. Grantedthat "Balikatan 02-1" is permitted under the terms ofthe VFA, what may US forces legitimately do infurtherance of their aim to provide advice, assistanceand training in the global effort against terrorism?Differently phrased, may American troops actuallyengage in combat in Philippine territory? The Termsof Reference are explicit enough. Paragraph 8 of


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section I stipulates that US exercise participants maynot engage in combat "except in self-defense." Wewryly note that this sentiment is admirable in theabstract but difficult in implementation. The target of

"Balikatan 02-1 I" the Abu Sayyaf, cannot reasonablybe expected to sit idly while the battle is brought totheir very doorstep. They cannot be expected to pickand choose their targets for they will not have theluxury of doing so. We state this point if only tosignify our awareness that the parties straddle a fineline, observing the honored legal maxim "Nemo

potest facere per alium quod non potest facere perdirectum."11 The indirect violation is actuallypetitioners' worry, that in reality, "Balikatan 02-1 " isactually a war principally conducted by the UnitedStates government, and that the provision on self-defense serves only as camouflage to conceal thetrue nature of the exercise. A clear pronouncement

on this matter thereby becomes crucial.

In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in an offensive waron Philippine territory. We bear in mind the salutaryproscription stated in the Charter of the UnitedNations, to wit:

Article 2

The Organization and its Members, inpursuit of the Purposes stated in Article1, shall act in accordance with thefollowing Principles.

xxx xxx xxx xxx

4. All Members shall refrain in theirinternational relations from thethreat or use of force against theterritorial integrity or political


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independence of any state, or inany other manner inconsistent withthe Purposes of the United Nations.

xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treatyand the Visiting Forces Agreement, as in all othertreaties and international agreements to which thePhilippines is a party, must be read in the context ofthe 1987 Constitution. In particular, the Mutual

Defense Treaty was concluded way before thepresent Charter, though it nevertheless remains ineffect as a valid source of international obligation.

The present Constitution contains key provisionsuseful in determining the extent to which foreignmilitary troops are allowed in Philippine territory.

Thus, in the Declaration of Principles and State

Policies, it is provided that:

xxx xxx xxx xxx

SEC. 2. The Philippines renounces war asan instrument of national policy, adoptsthe generally accepted principles ofinternational law as part of the law of theland and adheres to the policy of peace,equality, justice, freedom, cooperation,and amity with all nations.

xxx xxx xxx xxx

SEC. 7. The State shall pursue anindependent foreign policy. In itsrelations with other states the paramountconsideration shall be nationalsovereignty, territorial integrity, nationalinterest, and the right to self-determination.


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SEC. 8. The Philippines, consistent withthe national interest, adopts and pursuesa policy of freedom from nuclear

weapons in the country.

xxx xxx xxx xxx

The Constitution also regulates the foreign relationspowers of the Chief Executive when it provides that"[n]o treaty or international agreement shall be valid

and effective unless concurred in by at least two-thirds of all the members of the Senate."12 Evenmore pointedly, the Transitory Provisions state:

Sec. 25. After the expiration in 1991 ofthe Agreement between the Republic ofthe Philippines and the United States of

America concerning Military Bases,foreign military bases, troops or facilitiesshall not be allowed in the Philippinesexcept under a treaty duly concurred inby the Senate and, when the Congress sorequires, ratified by a majority of thevotes cast by the people in a nationalreferendum held for that purpose, andrecognized as a treaty by the othercontracting state.

The aforequoted provisions betray a markedantipathy towards foreign military presence in thecountry, or of foreign influence in general. Hence,foreign troops are allowed entry into the Philippinesonly by way of direct exception. Conflict arises thenbetween the fundamental law and our obligationsarising from international agreements.

A rather recent formulation of the relation ofinternational law vis-a-vis municipal law was


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expressed in Philip Morris, Inc. v. Court of Appeals,13to wit:

xxx Withal, the fact that international law

has been made part of the law of theland does not by any means imply theprimacy of international law over nationallaw in the municipal sphere. Under thedoctrine of incorporation as applied inmost countries, rules of international laware given a standing equal, not superior,

to national legislation.

This is not exactly helpful in solving the problem athand since in trying to find a middle ground, it favorsneither one law nor the other, which only leaves thehapless seeker with an unsolved dilemma. Othermore traditional approaches may offer valuable

insights.

From the perspective of public international law, atreaty is favored over municipal law pursuant to theprinciple of pacta sunt servanda. Hence, "[e]verytreaty in force is binding upon the parties to it andmust be performed by them in good faith."14Further, a party to a treaty is not allowed to "invokethe provisions of its internal law as justification for itsfailure to perform a treaty."15

Our Constitution espouses the opposing view.Witness our jurisdiction as I stated in section 5 ofArticle VIII:

The Supreme Court shall have thefollowing powers:

xxx xxx xxx xxx


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(2) Review, revise, reverse, modify, oraffirm on appeal or certiorari, asthe law or the Rules of Court mayprovide, final judgments and order

of lower courts in:

(A) All cases in which theconstitutionality or validity ofany treaty, international orexecutive agreement, law,presidential decree,

proclamation, order,instruction, ordinance, orregulation is in question.

xxx xxx xxx xxx

In Ichong v. Hernandez,16 we ruled that the

provisions of a treaty are always subject toqualification or amendment by a subsequent law, orthat it is subject to the police power of the State. InGonzales v. Hechanova,17

xxx As regards the question whether aninternational agreement may beinvalidated by our courts, suffice it to saythat the Constitution of the Philippineshas clearly settled it in the affirmative, byproviding, in Section 2 of Article VIIIthereof, that the Supreme Court may notbe deprived "of its jurisdiction to review,revise, reverse, modify, or affirm onappeal, certiorari, or writ of error as thelaw or the rules of court may provide,final judgments and decrees of inferiorcourts in -( I) All cases in which theconstitutionality or validity of any treaty,law, ordinance, or executive order orregulation is in question." In other words,


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our Constitution authorizes thenullification of a treaty, not only when itconflicts with the fundamental law, but,also, when it runs counter to an act of

Congress.

The foregoing premises leave us no doubt that USforces are prohibited / from engaging in an offensivewar on Philippine territory.

Yet a nagging question remains: are American troops

actively engaged in combat alongside Filipinosoldiers under the guise of an alleged training andassistance exercise? Contrary to what petitionerswould have us do, we cannot take judicial notice ofthe events transpiring down south,18 as reportedfrom the saturation coverage of the media. As a rule,we do not take cognizance of newspaper or

electronic reports per se, not because of any issue asto their truth, accuracy, or impartiality, but for thesimple reason that facts must be established inaccordance with the rules of evidence. As a result, wecannot accept, in the absence of concrete proof,petitioners' allegation that the Arroyo government isengaged in "doublespeak" in trying to pass off as amere training exercise an offensive effort by foreigntroops on native soil. The petitions invite us tospeculate on what is really happening in Mindanao,to issue I make factual findings on matters wellbeyond our immediate perception, and this we areunderstandably loath to do.

It is all too apparent that the determination thereofinvolves basically a question of fact. On this point, wemust concur with the Solicitor General that thepresent subject matter is not a fit topic for a specialcivil action for certiorari. We have held in too manyinstances that questions of fact are not entertainedin such a remedy. The sole object of the writ is to


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correct errors of jurisdiction or grave abuse ofdiscretion: The phrase "grave abuse of discretion"has a precise meaning in law, denoting abuse ofdiscretion "too patent and gross as to amount to an

evasion of a positive duty, or a virtual refusal toperform the duty enjoined or act in contemplation oflaw, or where the power is exercised in an arbitraryand despotic manner by reason of passion andpersonal hostility."19

In this connection, it will not be amiss to add that the

Supreme Court is not a trier of facts.20

Under the expanded concept of judicial power underthe Constitution, courts are charged with the duty "todetermine whether or not there has been a graveabuse of discretion amounting to lack or excess of

jurisdiction on the part of any branch or

instrumentality of the government."21 From the factsobtaining, we find that the holding of "Balikatan 02-1" joint military exercise has not intruded into thatpenumbra of error that would otherwise call forcorrection on our part. In other words, respondents inthe case at bar have not committed grave abuse ofdiscretion amounting to lack or excess of jurisdiction.

WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudiceto the filing of a new petition sufficient in form andsubstance in the proper Regional Trial Court.

SO ORDERED.

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