Professional Documents
Culture Documents
SUPREME COURT
Manila
EN BANC
RENE A.V. SAGUISAG, WIGBERTO E. TAADA,
FRANCISCO DODONG NEMENZO, JR., SR.
MARY JOHN MANANZAN, PACIFICO A.
AGABIN, ESTEBAN STEVE SALONGA, H.
HARRY L. ROQUE, JR., EVALYN G. URSUA,
EDRE U. OLALIA, DR. CAROL PAGADUANARAULLO, DR. ROLAND SIMBULAN and
TEDDY CASIO,
Petitioners,
-
versus -
2
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
versus -
MEMORANDUM
3
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
1.
a.
strike down and declare as unconstitutional the EDCA that was
entered into by the respondents on behalf of the Philippines, with the
government of the United States of America (US); and
b.
enjoin all the respondents from implementing the above
unconstitutional Agreement and to restrain them from any and all acts
relative thereto.
2.
4
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
4.
5.
6.
7.
5
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
9.
10.
11.
12.
13.
14.
6
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
of Philippine laws.
Makabayan is represented here by
Saturnino C. Ocampo and Liza Maza, its president and cochairperson, respectively, who have been authorized to
represent it in this petition through a Secretarys Certificate
dated May 21, 2014, a copy of which is attached in the Petition
as Annex C. Makabayan is holding office at No. 20 Marunong
St., Barangay Central, Quezon City.
15.
16.
17.
18.
19.
20.
7
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
22.
The Respondents
23.
24.
25.
26.
27.
8
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
28.
ANTECEDENT FACTS3
29.
30.
31.
32.
http://www.history.com/this-day-in-history/the-battle-of-manila-bay
Renato Constantino, The Philippines: A Past Revisited, p. 204
9
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
33.
34.
35.
36.
37.
38.
39.
Ibid, at p. 208.
US Congressional Records, Senate 56th Congress, 1st Session, January 9, 1900,
pp. 704-712)
7
Renato Constantino, The Philippines: A Past Revisited : p. 241.
6
10
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
The war that ensued was a brutal one. Estimates of those who
died range from a low of 12,000 to 20,000 Filipino combatants
and 200,000 to 600,000 civilians. 8
41.
42.
43.
44.
45.
46.
Ibid., at p. 245.
11
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
47.
On March 21, 1947, Pres. Roxas and McNutt signed the RP-US
Military Assistance Agreement (MAA) which was considered a
sister agreement to the RP-US Military Bases Agreement
(1947). The MAA provided for the creation of the Joint U.S.
Military Advisory Group (JUSMAG), and the permanent
stationing of US military officials in Manila for the logistical and
training requirements of the Armed Forces of the Philippines.
48.
49.
50.
51.
52.
The MBA Review of 1979 placed Clark and Subic under the
nominal ownership of the Philippine government, making them
US installations inside Philippine military installations. The
review also provided for each base to be formally under a
Filipino base commander. As supposed owners of the facilities,
the Philippines flew its flag in these bases together with the US
flag. The Philippine government also provided perimeter
security for the bases.
12
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
53.
54.
55.
But this was not the case. On May 27, 1999, the Philippine
Senate ratified the RP-US Visiting Forces Agreement (VFA)
which defined the treatment of visiting US troops who
participated in joint military exercises among other activities.
The VFA dealt with the issues of criminal jurisdiction, tax
exemptions and the movement of US troops and vessels.
56.
57.
58.
59.
60.
13
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
62.
63.
64.
14
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
66.
67.
68.
69.
70.
15
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
It was only on April 29, 2014, a few hours after Obama left
Manila, that the text of the EDCA was made public for the first
time via the official government website www.gov.ph.
72.
73.
74.
75.
76.
77.
78.
16
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
I
A.
B.
ISSUES
79.
17
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
A.
B.
C.
1.
Whether the provisions in EDCA pertaining to the presence of the United States personnel are already covered
and allowed under any existing treaty between the Republic of the Philippines and the United States of America; and
whether the treaty, if any, has already been concurred in by
the Senate. If so, whether any of the provisions under
EDCA modifies or amends any existing treaty between the
two countries;
2.
Whether the provisions in EDCA pertaining to the presence of equipment, supplies and materiel of the United
States Armed Forces are already covered and allowed under any existing treaty between the Republic of the Philippines and the United States of America; and whether any
such treaty has already been concurred in by the Senate. If
so, whether any of the provisions under EDCA modifies or
amends any existing treaty between the two countries;
3.
18
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
4. Whether the Constitution allows the presentation, for Senate concurrence, of separate provisions in an agreement
instead of the entire instrument;
5. Whether the Republic of the Philippines has already expressed its consent to be bound by the provisions of
EDCA; if it has, whether this Court can still invalidate EDCA
or any of its provisions;
B.
C.
D.
Whether the EDCA deprives the Supreme Court of its judicial power;
E.
Procedural Issues
80.
A.
B.
19
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
82.
83.
84.
85.
86.
20
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
88.
89.
The legal requisites for judicial inquiry are the following: 16 (a)
there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act
must have the standing to question the validity of the subject
act or issuance; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of
constitutionality must be the very lismota of the case.
90.
Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA
1, 35; and Francisco v. House of Representatives, 460 Phil. 830, 842 (2003),
citing Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA
623, 631-632.
15
See for instance, Gonzales v. Macaraig, G.R. No. 87636. November 19, 1990,
citing Tolentino v. COMELEC, G.R. No. L-34150, 16 October 1961, 41 SCRA 702.
16
Dumlao vs Commission on Elections, 95 SCRA 392.
14
21
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
92.
93.
94.
22
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
96.
The issues are ripe for adjudication. First, the EDCA has
already been signed by the respective representatives of both
the Philippines and the US governments. Second, the Acting
Solicitor General already confirmed that the EDCA is already in
force since it has already been ratified by the President on June
6, 2014 and in the case of the US, it considers the EDCA to
have entered into force on the 25 th of June 2014, as reflected in
its diplomatic note of the same date.17
97.
98.
99.
23
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
104.
24
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
25
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
106.
107.
26
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
108.
109.
110.
111.
27
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Petitioners note that even a lead member of the Philippine negotiating panel for the EDCA confirms that the treaty status of
an agreement is determined by its content and not its designation. In his Philippine Treaty Law and Practice, Ambassador
Eduardo Malaya wrote:
The title of the instrument does not determine the nature
of the instrument. What is determinative is the intent
of the negotiating states to be legally-binding or not.
It is only by examining its specific provisions can its
real nature be established.21
28
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
117.
29
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Respondents insist that this provision on international instruments and the strict requirements thereunder do not apply to
EDCA because the same is a mere executive agreement. 28
120.
121.
Furthermore, DFA Office Order No. 01-2007 also listed the categories of agreements which by practice have been treated as
treaties and thus requiring Presidential ratification and Senate
concurrence before they can enter into force: 30
a. Status of Forces Agreements/Visiting Forces Agreement;
30
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
31
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
127.
Second, a submission as to the proper reading of the Constitution: What activates the application of Section 25 of Article
XVIII and all its strict requirements is the nature or substance of
any post -1991 MBA agreement as one concerning foreign military bases, troops, or facilitiesnot the agreements designation
on paper as an Agreement x xx Enhanced Defense Cooperation or on bare public statements that EDCA is a mere executive agreement.
128.
129.
33
34
32
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Petitioners submit, therefore, that where an agreement concerns foreign military bases, troops, or facilities, such agreement should be in the form of a treaty and must go through the
rigors of Section 25, Article XVIII of the Constitution.
131.
Ibid., at page 9.
Doctrine of Qualified Political Agency. Manalang-Demigillo v. Trade and
Investment Development Corporation of the Philippines, G.R. No. 168613, 5 March
2013, citing Villena v. The Secretary of the Interior, 67 Phil. 451, 463-464 (1939). The
doctrine of qualified political agency essentially postulates that the heads of the various
executive departments are the alter egos of the President, and, thus, the actions taken
by such heads in the performance of their official duties are deemed the acts of the
President unless the President himself should disapprove such acts. This doctrine is in
recognition of the fact that in our presidential form of government, all executive
organizations are adjuncts of a single Chief Executive; that the heads of the Executive
Departments are assistants and agents of the Chief Executive; and that the multiple
executive functions of the President as the Chief Executive are performed through the
Executive Departments. The doctrine has been adopted here out of practical necessity,
considering that the President cannot be expected to personally perform the multifarious
functions of the executive office.
35
36
33
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
133.
134.
Executive Order 292, Revised Administrative Code, Title VIII, Subtitle I, Chapter
2, National Security Council XXXXX
SECTION 2. Declaration of Policies. (1) The formulation of integrated and
rationalized national, foreign, military, political, economic, social and educational
policies, programs, and procedures vital to the security of the state.
(2)
The national interest requires that an agency exist to formulate and adopt
policies, programs, and procedures on all matters pertaining to or affecting the national
security so that judgments and actions thereon by the President may rest on sound
advice and accurate information.
SECTION 3. Mandate. The National Security Council shall serve as the lead agency
of the government for coordinating the formulation of policies, relating to or with
implications on the national security.
SECTION 4. Composition. The National Security Council, hereinafter referred to as
Council, shall be composed of the President as Chairman, the Vice-President, the
Secretary of Foreign Affairs, the Executive Secretary, the Secretary of National Defense,
the Secretary of Justice, the Secretary of Labor and Employment, the Secretary of Local
Governments, the National Security Director, the Chief of Staff of the Armed Forces of
the Philippines (AFP), and such other government officials and private individuals as the
President may appoint.
SECTION 5. Powers and Functions. In addition to such specific duties and
responsibilities as the President may direct, the Council shall:
(1)
Advise the President with respect to the integration of domestic, foreign, military,
political, economic, social, and educational policies relating to the national security so as
to enable all concerned departments and agencies of the government to meet more
effectively, problems and matters involving the national security;
(2)
Evaluate and analyze all information, events, and incidents in terms of the risks
they pose or implications upon or threats to the overall security and stability of the
nation, for the purpose of recommending to the President appropriate action thereon;
(3)
Formulate and coordinate the implementation of policies on matters of common
interest to the various departments, and agencies of the government concerned with the
national security, and make recommendations to the President in connection therewith;
(4)
Insure that policies adopted by the Council on national security are effectively
and efficiently implemented; and
(5)
Make such recommendations or render such other reports as the President may
from time to time require.
SECTION 6. Executive Committee. The Council shall have an Executive Committee
composed of the President as Chairman, and the Vice-President and Secretary of
Foreign Affairs, the Executive Secretary, the Secretary of National Defense, the National
Security Director, the Chief of Staff of the Armed Forces of the Philippines and such
other members or advisers as the President may appoint from time to time.
The Executive Committee shall review national security and defense problems and
formulate positions or solutions for consideration by the Council. It shall determine the
agenda and order of business of the Council, and shall ensure that decisions of the
Council are clearly communicated to the agencies involved. It shall advise the President
on the implementation of decisions.
34
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
140.
141.
To carry out the functions of the Executive Committee, the Chairman shall utilize the
facilities and expertise of any of the government agencies and instrumentalities and shall
promulgate rules and regulations to govern the operations of the Executive Committee.
38
Executive Order 292, Revised Administrative Code, Title VIII, Subtitle II, Chapter
1, Section 16. General Military Council. The General Military Council shall advise and
assist the Secretary in the formulation of military policies and shall consider and report
on such other matters as the Secretary may direct. The Council shall be composed of
the Secretary as Chairman; and the Undersecretary of National Defense, the Chief of
Staff, the Vice-chief of Staff, the Assistant Chief of Staff of the Armed Forces of the
Philippines, and the Commanders of the Major Services, as members. The Deputy Chief
of Staff of the Armed Forces of the Philippines shall be the Secretary of the Council.
39
Executive Order 292, Revised Administrative Code, Title VIII, Subtitle II, Chapter
1, Section 15. Declaration of Policy. The defense establishment shall be maintained
to maximize its effectiveness for guarding against external and internal threats to
national peace and security and provide support for social and economic development.
40
67 Phil. 451, 463-464 (1939).
35
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
The EDCA, respondents argue, merely implements such defensive preparation activities already authorized under the
MDT. Such claim has no factual and legal basis.
146.
It must be emphasized that the defensive preparation activities that respondents claim to have been authorized by the MDT
and merely implemented by EDCA are activities that necessitate the presence of US military troops and facilities in the
country.
36
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
And what stands out is that the MDT was entered into at a time
when there was no prohibition on foreign military bases, troops
or facilities that is now found in Section 25 Article XVIII of the
Constitution. As aptly noted by Dean Merlin Magallona, (t)he
prohibition is not qualified by any means as to how the treaty is
related to any existing agreement.41
150. Under the present Constitution, even granting for the sake of
argument that the EDCA is not a basing agreement, whatever
claimed defensive preparation activities are allowed under the
MDT which would necessitate the presence of foreign military
troops or facilities in the country ARE NO LONGER ALLOWED
after 1991 unless the presence of such foreign military troops or
facilities are provided for in a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national
referendum held for that purpose and recognized as a treaty by
the other contracting State.
151. Given this prohibition, the implementing agreement argument
put forth by the respondents totally ignores the fact that
between the MDT and the EDCA, the overwhelming majority of
the Filipino people ratified the 1987 Constitution.
37
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
154.
These Agreed
38
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
46
47
48
49
50
51
52
53
39
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
157.
POLICY LEVEL
XXX
5. The exercise shall be conducted and completed
within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP
forces.
6. The exercise is a mutual counter-terrorism
advising, assisting and training exercise relative to
Philippine efforts against the ASG, and will be conducted
on the Island of Basilan. Further advising, assisting and
training exercises shall be conducted in Malagutay and
the Zamboanga area. Related activities in Cebu will be for
support of the Exercise.
40
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
158.
159.
http://www.dnd.gov.ph/pdf/EDCAFAQs
41
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
i.
42
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
167. While there is no existing treaty that covers the same range and
scope of what EDCA provides, there is, most tellingly, one that
had lost effect in 1991.
168. The RP-US Military Bases Agreement (MBA), in force between
1947 and 1991, is uncannily similar in language and substance
to the EDCA. Controversial all throughout its time, the MBA
predated the Mutual Defense Treaty; the latter made explicit the
defense relationship as declared in the bases agreement.
169.
MBA
Preamble
EDCA
Article I, Section I of the EDCA
EDCA
Recognizing that all United States
access to and use of facilities and
areas will be at the invitation of
the Philippines and with full
respect
for
the
Philippine
Constitution and Philippine laws.
43
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
ii.
The EDCA, like the MBA,
acknowledges and allows the
entry into the Philippines not
only of US forces and US
personnel but also US civilian
contractors.
---------------------------------------------171.
172.
MBA
EDCA
Article XI
Article III
44
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
the bases
2.
173. The EDCA provides who are considered US forces and United
States contractors. Thus, Article II on the definitions of terms
states, to wit:
1. United States personnel means United States military and
civilian personnel temporarily in the territory of the Philippines in
connection with activities approved by the Philippines, as those
terms are defined in the VFA.
2. United States forces means the entity comprising United
States personnel and all property, equipment, and material of
the United States Armed Forces present in the territory of the
Philippines.
3. United States contractors means companies and firms, and
their employees, under contract or subcontract to or on behalf
of the United States Department of Defense. United States are
contractors are not included as part of the definition of United
States personnel in this Agreement, including within the context
of the VFA.
174. Currently, only United States personnel with functional military
ties are allowed entry in the Philippines, for activities approved
by the Philippine government, through the VFA.
175.
Article I of the VFA: ....United States personnel means United States military
and civilian personnel temporarily in the Philippines in connection with activities
approved by the Philippine Government. Within this definition:
56
45
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
177.
Under EDCA, United States forces may contract for the delivery
of any materiel, supplies, equipment, and the undertaking of
services including construction in the territory of the Philippines
without restriction as to choice of contractor, supplier, or
person. Such contracts are solicited, awarded, administered in
accordance with the laws and regulations of the United States.
1. The term "military personnel" refers to military members of the United States
Army, Navy, Marine Corps, Air Force, and Coast Guard.
2. The term "civilian personnel" refers to individuals who are neither nationals of nor
ordinarily resident in the Philippines and who are employed by the United States
armed forces or who are accompanying the United States armed forces, such as
employees of the American Red Cross and the United Services Organization.
46
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Number
of
Actions
10,377
Raytheon Company
11,368
General
Dynamics
Corporation
18,400
Northrop
Grumman
Corporation
11,905
SAIC Inc.
Huntington
Ingalls
Industries Inc.
L-3
Communications
Holdings Inc.
United
Technologies
Corporation
30,348
4,168
10,543
11,876
Dollars
Obligated
$44.11
million
$21.17
million
$14.06
million
$13.11
million
$10.00
million
$6.30
million
$6.24
million
$5.78
million
$5.71
million
%Total
Actions
%Total
Dollars
0.1555% 9.6372%
0.0768% 4.6255%
0.0841% 3.0716%
0.1361% 2.8638%
0.0881% 2.1837%
0.2245% 1.3768%
0.0308% 1.3628%
0.0780% 1.2621%
0.0879% 1.2482%
The Federal Government Procurement System has a website. The latest final
report is for fiscal year 2013, though a list is adjusted throughout the year. Last accessed
December
12,
2014.
https://www.fpds.gov/downloads/top_requests/Top_100_Contractors_Report_Fiscal_Ye
ar_2013.xls
57
47
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
183.
184.
185.
48
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
http://www.upi.com/Business_News/Security-Industry/2013/07/12/DynCorpcontinues-support-for-US-military-in-Philippines/77181373656648/.
Last
accessed
December 12, 2014.
61
49
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
50
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
51
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
xxx
ACTING SOLICITOR GENERAL HILBAY: I dont know, Your Honor,
whether there are mercenaries but I dont even know which kinds of
contractors will be allowed there.
xxx
JUSTICE LEONEN: So, is it the position of the Government that the
United States will never contract these security companies here in the
Philippines in any of the Agreed Locations or fo any of the activities
mentioned in EDCA?
ACTING SOLICITOR GENERAL HILBAY: I dont know, Your Honor, what
is simply, whats simply says here is that the United States...
JUSTICE LEONEN: So it is possible.
ACTING SOLICITOR GENERAL HILBAY: It is possible that the United
States can hire because there is no limitation in ...
xxx
JUSTICE LEONEN: So the contractors happen to be security personnel
like Blackwater or DynCorp or some other corporations. And they hold
guns and they patrol the Agreed Locations. Is this possible or are you now
telling this Court that these things are entirely not possible?
ACTING SOLICITOR GENERAL HILBAY: Under the EDCA itself, Your
Honor, we have primary responsibility because the location is ours and we
have access to these locations.63
192.
63
64
52
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Save for the adjectives defense and war used loosely, there
are no other descriptive or explanatory word for the equipment,
supplies and material referred to in EDCA. The circumscription
and limitations on what may be brought in are based on the
kinds of activities that may be undertaken.
53
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
54
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
68
69
70
55
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
203.
It cannot hide the fact that the second sentence is the main
purpose of the EDCAthat the US can store weapons,
ammunition and other war materiel and equipment in the
agreed locations on the ground that it is intended to enhance
its defense capability.
206.
71
72
56
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
MBA
Article III: Description of Rights
It is mutually agreed that that the
United States shall have the rights,
power, and authority within the
bases which are necessary for the
establishment, use, operation and
defense thereof or appropriate for
the control thereof and all the rights,
power and authority within the
territorial waters and air space
adjacent to, or in the vicinity of, the
bases which are necessary to
provide access to them, or
EDCA
The US has
(i) operational control over Agreed
Locations including its buildings
and facilities;
(ii) access and use of Agreed
Locations;
(iii) the right to exclude Filipinos
without the permission of the US,
(iv) operational control over the
construction, removal, and storage
of anything within the Agreed
Locations; and
(iv) as provided under Article VI,
Paragraph 3, the US are
57
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
210.
58
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
73
59
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
217. It should also be noted that paragraph 5 does not refer merely
to areas wherein construction activities are taking place, as
opposed to paragraph 4, but pertains to the agreed location as
a whole. Thus, it will be US forces and personnel in possession
and control of the agreed location in its entirety. Philippine
personnel are allowed access to agreed locations only by virtue
of paragraph 5, but even this access is somewhat limited. This
leads to the next point
218. The second sentence of this paragraph reveals the
agreements true intent. Access by the Philippine Designated
Authority (or its representative) is allowed but made subject to
operational safety and security requirements. These
requirements are to be in accordance with procedures agreed
upon by the PH and the US. While the procedures are subject
to an agreement between the parties, the operational safety
and security requirements themselves are left for the US to
formulate. Hence, what would be agreed upon would merely be
60
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
220.
221.
Angangco, Raoul R. and Jose Perpetua M. Lotilla, The 1979 Amendments to the
Military Bases Agreement of 1947: Still a Question of Sovereignty. 53 Philippine Law
Journal 472.
74
61
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
223.
226.
227.
The amendments in summary: (1) U.S. to affirm Filipino sovereignty over the
bases; (2) RP to install a Filipino Commander within the base; (3) to reduce the areas
within the base for U.S. use; (4) Filipino troops to assume the base perimeter
responsibility; (5) to review the agreement thoroughly every five years, including its
objectives, duration, and Implementation; and (6) to assure unhampered U.S. military
operations when U.S. forces are involved in the Philippines.
76
Doctrine for the Armed Forces of the United States, Joint Publication 1, published
on March 25, 2013, also called JP-1
77
JCSM-29-59 dated January 26, 1959
75
62
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
63
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
80
http://www.paf.mil.ph/archive/MANUALS/body/Chapter%2010.pdf
64
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
233.
65
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
85
86
PDD-25
Ibid.
MBA
EDCA
Article V, Paragraph 1
The Philippines shall
retain ownership of and
title
to
Agreed
Locations
66
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Philippine
sovereignty
extends, and that only the
Philippine flag shall be flown
singly at the bases.
As to use and Article I: Grant of Bases
US forces, contractors,
access
and others as mutually
1. The Government of the agreed
Republic of the Philippines (i) shall have the right to
(hereinafter referred to as the access and use to
Philippines) grants to the Agreed
Locations
Government
of
America provided
by
the
(hereinafter referred to as the Philippines through the
United States) the right to AFP
retain the use of the bases in (ii) unimpeded access to
the Philippines listed in Annex Agreed Locations for all
A attached hereto.
matters relating to the
prepositioning
and
2. The Philippines agrees to storage
of
defense
permit the United States, upon equipment,
supplies,
notice to the Philippines, to and material, including
use such of those bases listed delivery, management,
in Annex B.
inspection,
use,
maintenance,
and
removal
of
such
Article VII: Ownership and equipment, supplies and
Disposition
of
Buildings, material.
Structures
and
Other
Properties
(based
on
Manglapus-Schultz
amendments)
2...The US shall, however,
have the right of full use, in
accordance
with
this
Agreement, of such nonremovable
buildings
and
structures within the US
facilities at the bases...
238.
67
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Even in self-defense.
MR. GASCON:
Officer.
MR. NOLLEDO:
A concept of pacifism is that when one is attacked, he
just allows the attacker to kill him. Self-defense is an instinctive right that is
inherent in human nature. I do not believe that even a pacifist will not
defend himself.
68
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
MR. AZCUNA:
This is best stated in the John Wayne philosophy, Mr.
Presiding Officer, when he said: "We ain't looking for trouble, Mister, but if
trouble comes galloping around looking for me, I ain't hard to find."
MR. NOLLEDO:
MR. AZCUNA:
We can defend ourselves. We renounce war only
when it is an aggressive war.
MR. GASCON:
241.
244. This is a throwback both to the MBA and the rejected 1991
Treaty of Friendship, Cooperation and Security between the
Philippines and the US.
245.
Areas
Supported
Southeast
Asia
Operation Supported
1. Offset Soviet (or its successor regime) military
presence
2. Threaten Soviet lines of communication to
Southeast Asia from Soviet Far East
3. Support ground warfare in defense of allies
4. Defend Southeast Asian sea and air routes
69
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Northeast
Asia
Persian Gulf
246.
247. The US tried to extend its stay in the Philippine bases by ten
(10) more years through the Treaty of Friendship. Citing the
eruption of Mt. Pinatubo and dangling various economic
enticements, then-US President George Bush pushed for the
ratification of the treaty as integral to continuing defense
cooperation.
248. However, in 1991, the Philippine Senate rejected the treaty,
noting as one of the factors, the multi-purpose entry of US
troops.
249. Senate Resolution No. 415 of the Eighth Congress of the
Philippines, states:
Taking into account that the Treaty and Supplementary
Agreement Number Two allows the use by the United States of
installations in Subic Naval Base for a period of ten (10) years
after the expiration of the Military Bases Agreement on 16
September 1991 for the purpose, inter alia, of projecting or
operating United States forces from the installations under
conditions of peace and war;
70
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
71
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
252. EDCA states that the US have the right to posses and use the
land, buildings and other non-relocatable structures in the
Agreed Locations until no longer required by [its] forces.
253. This certainly is a worse deal than the MBA. The right of use to
the bases automatically revert to the Philippines upon the
termination of [the MBA] or the earlier relinquishment by the
US.
254. EDCAs seemingly innocuous phraseology makes return of the
facilities or locations a potestative conditional obligation, rather
than subject to a suspensive term. Rhetorially put, if the US
does not deem that it no longer requires the Agreed Locations,
can the Philippines demand their return? Under our Civil Law,
when the fulfillment of the condition depends upon the sole will
of the obligor, no juridical tie is created and the conditional
obligation shall be void.
255. Further, there is no stipulation in EDCA regarding the condition
of the facilities or locations upon turn-over. Thus unspoken, it
avoids any off-putting statement such as in the MBA:
There is no obligation on the part of the United States or of the
Philippines to rebuild or repair any destruction or damage
inicted from any cause whatsoever on any of the nonremovable buildings or structures used by the United States in
the bases. The United States is not obligated to turn over the
bases to the Philippines at the expiration of this Agreement or
the earlier relinquishment of any bases in the condition in which
they were at the time of their occupation, nor is the Philippines
obliged to make any compensation to the United States for the
improvements made in the bases or for the non-removable
buildings or structures left thereon....90
256.
The EDCA did not follow the lead of the Treaty of Friendship,
where it was directly proposed that the US shall make every
effort to turn [all immovables] over in serviceable condition. 91
90
91
72
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
i.
257.
92
93
73
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
260. The EDCA brings back the US bases under a different name,
under a more flexible arrangement, but with the same functions
and purpose.
261.
262.
training;
transit;
support and related activities;
support 1. The action of a force that aids, protects,
complements, or sustains another force in accordance
with a directive requiring such action. 2. A unit that helps
another unit in battle. 3. An element of a command that
assists, protects, or supplies other forces in combat. See
also close support; direct support; general support;
inter Service support; mutual support. (JP 1)
d.
94
74
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
i.
75
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
265.
76
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
266.
ii.
The respondents yielded to
the US forces the operational
control of Agreed Locations.
----------------------------------------------267.
268.
77
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
combatant
command
(command
authority)
271.
272.
78
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
278.
79
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
The Parties may consult regarding the possible transfer or purchase of equipment determined to be excess, as may
be allowed by United States laws and regulations.
5.
Xxx
Article IX, paragraph 2, states:
x x x The environmental
compliance standards applied by United States, Philippine, or
applicable international agreement standards. To that end,
during the development and periodic review of such
environmental practices, the Parties shall cooperate and
consult to ensure that Philippine standards are accurately
reflected.
Xxx
Article X, paragraph 4;
The Parties of their Designated Authorities intend to consult
regularly concerning the implementation of this Agreement.
Xxx
Article XI
Article XI
RESOLUTION OF DISPUTES
The Parties agree to resolve any dispute arising under
this Agreement exclusively through consultation
between the Parties. Disputes and other matters subject
to consultation under this Agreement shall not be referred
to any national or international court, tribunal, or other
similar body, or to any third party for settlement, unless
otherwise agreed by the Parties.
80
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
279.
280.
281.
282.
81
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
98
II. Purpose The Board shall provide a framework and mechanism for direct and
continuing liaison and consultation on non-traditional security concerns such as, but not
limited to, terrorism, transnational crimes, maritime security and safety, natural and manmade disasters, between the appropriate Philippine and United States authorities;
develop measures and arrangements for enhanced cooperation in connection therewith;
and promote the common security interests of the two sovereign countries. The Board
shall co-exist with and complement the Mutual Defense Board (MDB) created under the
Mutual Defense Treaty between the Republic of the Philippines and the United States of
America signed on the 30th of August 1951 and entered into force on the 27th of August
1952. XXXXX
IV. Terms of Reference Pursuant to the RP-US Visiting Forces Agreement, the Board
shall consider and develop measures and arrangements for enhanced RP-US
cooperation on non-traditional security concerns and by agreement between the CoChairmen, decide on matters within their competence, as may be established by their
respective policies and procedures, or recommend matters for approval by the Council
of Foreign Ministers through their respective Departments of Defense.
82
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
83
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
84
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
AGREED LOCATIONS
1.
With consideration of the views of the Parties, the
Philippines hereby authorizes and agrees that United States
forces, United States contractors, and vehicles, vessels, and
aircraft operated by or for United States forces may conduct the
following activities with respect to Agreed Locations: training;
transit; support and related activities refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles,
vessels and aircraft; temporary accommodation of personnel;
communications; prepositioning of equipment, supplies, and
material; deploying forces and material; and such other
activities as the Parties may agree.
XXXXX
4.
The Philippines hereby grants to the United States,
through bilateral security mechanisms, such as the MDB and
SEB, operational control of Agreed Locations for construction
activities and authority to undertake such activities on, and
make alterations and improvements to, Agreed Locations.
United States forces shall consult on issues regarding such
construction, alterations, and improvements based on the
Parties shared intent that the technical requirements and
construction standards of any such projects undertaken by or
on behalf of the United States forces should be consistent with
the requirements and standards of both Parties.
5.
The Philippine Designated Authority and its authorized
representative shall have access to the entire area of the
Agreed Locations. Such access shall be provided promptly
consistent with operational safety and security requirements in
accordance with agreed procedures developed by the Parties.
Article IV
EQUIPMENT, SUPPLIES, AND MATERIAL
1.
The Philippines hereby authorizes United States forces,
through bilateral security mechanisms, such as the MDB and
SEB, to preposition and store defense equipment, supplies, and
material (prepositioned material), including, but not limited to,
humanitarian assistance and disaster relief equipment,
supplies, and material, at Agreed Locations. United States
forces shall notify the AFP in advance regarding the quantities
and delivery schedules of defense equipment, supplies, and
85
MEMORANDUM
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
86
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
288. The Agreed Locations and the activities that the US Forces
may propose to do thereon do not become purely matters of
military concern simply because the MDB and SEB see them fit
to make them as such.
289. The Agreed Locations are part of Philippine Territory and the
discretion to dispose of the same cannot rest solely on the
whims and caprices of persons comprising the military
establishment.
87
MEMORANDUM
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Any actions of the MDB and SEB in this regard are clearly ultra
vires, void and of no legal force and effect.
296.
88
MEMORANDUM
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
298.
299.
99
1987 Constitution
89
MEMORANDUM
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
301.
In their consolidated comment as well as in their statements before the Supreme Court on the occasion of the Oral Arguments,
Respondents, through the Office of the Solicitor General, argues that the EDCA was validly entered into by the President in
the exercise of his constitutionally assigned powers as chief executive.
302.
Article VII Section 1 of the 1987 Constitution states that executive power shall be vested in the President of the Philippines.100
303.
304.
90
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
91
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
BOOK III
OFFICE OF THE PRESIDENT
Title I. POWERS OF THE PRESIDENT
CHAPTER 1. POWER OF CONTROL
Section 1.Power of Control. of all the executive
departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
103
92
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
93
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
306.
307.
In their Consolidated Comment dated 10 October 2014, Respondents assert that the President (as Chief Architect of the
countrys foreign policy) has the authority and duty to enter into
agreements like EDCA for the defense of the national territory
and maintenance of regional security, thus
As Chief Executive and architect of the nations
foreign policy, the President, through the DND,
negotiated and ratified the EDCA to implement
existing treaty commitments under the MDT and the
VFA. As Commander-in-Chief106 and protector of the
104
94
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
107
108
95
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
109
96
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
312.
313.
314. It is therefore clear that when it comes to international agreements involving foreign military bases, troops, or facilities, the
Presidents power to enter into such agreements is limited by
Sec. 25 Article XVIII of the Constitution.
315.
110
As amply discussed, since the EDCA involves the entry of foreign military bases, troops or facilities, the power of the President to enter into such agreement must comply with Sec.
25 Article XVIII of the Constitution. Absent such compliance,
97
MEMORANDUM
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
111
98
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins with the
simple declaration that [t]he President shall be the Commander-in-Chief of all armed forces of the Philippines x xx Outside
explicit constitutional limitations, such as those found in Section
5, Article XVI, the commander-in-chief clause vests on the
President, as commander-in-chief, absolute authority over
the persons and actions of the members of the armed
forces.114
318.
Section 18, Article VII grants the President, as Commander-inChief, a sequence of graduated powers. From the most to
the least benign, these are115
a.
b.
c.
319.
the calling-out power the power to suspend the privilege of the writ
of habeas corpus, and
the power to declare Martial Law.
In Integrated Bar of the Philippines v. Zamora,116 the Supreme Court ruled that the only criterion for the exercise of the
calling-out power is that whenever it becomes necessary,
114
B/Gen. Francisco Gudani vs. Lt. Gen. GenerosoSenga, G.R. No. 170165,
August 15, 2006
115
Randolf David vs Gloria Macapagal-Arroyo G.R. No. 171396, May 3,
2006
Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000,
338 SCRA 81
116
99
MEMORANDUM
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion.
When the President calls the armed forces to
prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary
power solely vested in his wisdom. This is clear
from the intent of the framers and from the text of
the Constitution itself. The Court, thus, cannot be
called upon to overrule the Presidents wisdom
or substitute its own. However, this does not
prevent an examination of whether such power
was exercised within permissible constitutional
limits or whether it was exercised in a manner
constituting grave abuse of discretion. In view of
the constitutional intent to give the President full
discretionary power to determine the necessity of
calling out the armed forces, it is incumbent upon
the petitioner to show that the Presidents decision
is totally bereft of factual basis.
There is a clear textual commitment under the
Constitution to bestow on the President full
discretionary power to call out the armed forces and
to determine the necessity for the exercise of such
power.117 (Emphasis supplied)
320.
321.
117
118
119
100
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
ii. The exceptional character of Commander-inChief powers dictate that they are exercised by one
president
Springing from the well-entrenched constitutional
precept of One President is the notion that there are
certain acts which, by their very nature, may only be
performed by the president as the Head of the
State. One of these acts or prerogatives is the
bundle of Commander-in-Chief powers to which the
"calling-out" powers constitutes a portion.
xxx
The power to declare a state of martial law is
subject to the Supreme Courts authority to review
the factual basis thereof.120 By constitutional fiat, the
calling-out powers, which is of lesser gravity than
the power to declare martial law, is bestowed upon
the President alone. As noted in Villena, "(t)here are
certain constitutional powers and prerogatives of the
Chief Executive of the Nation which must be
exercised by him in person and no amount of
approval or ratification will validate the exercise of
any of those powers by any other person. Such, for
instance, is his power to suspend the writ of habeas
corpus and proclaim martial law x xx.121
Indeed, while the President is still a civilian, Article
II, Section 3122 of the Constitution mandates that
civilian authority is, at all times, supreme over the
military, making the civilian president the nations
supreme military leader xxx As Commander-inChief, he is authorized to direct the movements of
the naval and military forces placed by law at his
command, and to employ them in the manner he
may deem most effectual.123
322.
There is no provision dealing with the revocation by Congress or review by the Courts of the Presidents action to
121
101
MEMORANDUM
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
call out the armed forces. This distinction places the calling
out power in a different category,otherwise, the framers of the
Constitution would have simply lumped it together the two other
powers and provided for revocation and review without any
qualification.124
323.
124
In case of invasion or rebellion, when the public safety requires it, the President may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial
law
b)
c)
d)
e)
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof,
and must promulgate its decision thereon within thirty days
from its filing.
f)
Jamar Kulayan vs. Gov. Abdusakur Tan, G.R. No. 187298, July 03, 2012
102
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
where civil courts are able to function, nor automatically suspend the privilege of the writ.
g) The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent
in or directly connected with invasion.
h) During the suspension of the privilege of the writ, any person
thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released.
324.
325.
However, as already stated in the previous discussion on foreign relations powers, when it comes to international agreements involving foreign military bases, troops, or facilities,
the Presidents power to enter into such agreements is limited by Sec. 25 Article XVIII of the Constitution.
103
MEMORANDUM
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
327.
Justice Leonen further stated that certain aspects of Commander-in-Chief Powers are shared by the President with Congress.
The Honorable Justice pointed to Article XVIII Section 25 as the
specific provision in the Constitution which frames the Presidents power to act as commander-in-chief in the international
arena, to wit
ASSOCIATE JUSTICE LEONEN: I want to go into your
theory and that your theory is, everything here is part of the
President's power as commander-in-chief under Article 7,
Section 18, is that not correct?
ACTING SOLICITOR GENERAL HILBAY: Correct, Your
Honor.
ASSOCIATE JUSTICE LEONEN: Yes, but as commanderin-chief, of course, the President has to take care of internal
conflict and, therefore, he has the power to call out the
Armed Forces, declare a state of martial law, suspend the
privilege of the writ of habeas corpus among others, is that
not correct?
ACTING SOLICITOR GENERAL HILBAY: Correct, Your
Honor.
ASSOCIATE JUSTICE LEONEN: But then on the other
hand, his power as a commander-in-chief with respect to the
declaration of a state of war is shared with Congress, is that
not correct? Articles VI, Section 23, the power to declare a
state of war is with Congress and there is a specific method
of voting in terms of Congress, is that accurate in our
Constitution?
ACTING SOLICITOR GENERAL HILBAY: Your Honor,
there are complications with respect to thepower to...
(interrupted)
ASSOCIATE JUSTICE LEONEN: But that provision exists,
which means, therefore, that the power of the President as
commander-in-chief is shared in relation to the power to
make a war. Of course there is still the other provisions that
curtail or frame the power of the President, Article II, Section
7 that we should conduct independent foreign policy, Article
II, Section 8, nothing about nuclear weapons, etcetera.
Now, when the President deals as commander-in-chief with
foreign military forces, therefore, it is not only the
commander-in-chief provision that is involved but likewise
the creation of foreign policy, is that not correct?
ACTING SOLICITOR GENERAL HILBAY: That is correct,
Your Honor.
104
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Clearly, therefore, the Commander-in-Chief Powers of the President cannot give validity to the EDCA in light of the clear absence of compliance with the requirements in Sec. 25 Art. XVIII
of the Constitution as well as the various other constitutional
provisions and statutes which EDCA directly violates and contravenes.
105
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
329.
106
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
333.
334.
by the parties shall have the right to access and use Agreed
Locations pursuant to the Agreement;
b. The US forces, US contractors, and vehicles, vessels, and
107
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
h.
i.
j.
k.
108
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
l.
The US forces and US contractors shall retain title to all equipment, material, supplies, relocatable structures, and other
moveable property that have been imported into or acquired
within the territory of the Philippines by or on behalf of US
forces.
m.
335.
The US forces shall enjoy all these rights and privileges for an
initial term of TEN YEARS, and thereafter, it shall continue in
force automatically unless terminated by either party.
336.
109
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
340.
The agreement does not also set any limits on what areas
throughout the country that US troops can access, the number
of US troops that can access these areas or facilities, and the
duration of their stay.
341.
342.
343. The respondents claim that EDCA will further benefit the Philippines through the provision of jobs and other economic opportunities in the construction activities.
344. It is significant to note however that EDCA does not require the
US to give preferential treatment to Filipino contractors to build
facilities in agreed locations or supply the needs of US troops.
On the contrary, it gives the US the exclusive right to choose its
own contractors and suppliers.
345. What EDCA merely requires is for the US to make the best effort to fire Filipino contractors and suppliers. Thus, Article VIII,
paragraph 2 states: United States forces shall strive to use
Philippine suppliers of goods, products, and services to the
greatest extent practicable in accordance with the laws and regulations of the United States.
346. The possible economic benefit that Filipinos may have under
EDCA is as source of cheap labor. Filipino workers may be
hired to perform construction work and other low-paying jobs,
such as laundry work, cooking, cleaning and other support
tasks necessary to operate military facilities. However, these
workers are vulnerable to abuse since EDCA does not provide
protection mechanism to workers.
110
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
b.
c.
a provision that the US shall strive to use Philippine supplier of goods, products and services to the greatest extent practicable in accordance with the laws and regulations of the United States;
d.
a confirmation of intent to respect relevant Philippine environmental, health, and safety laws, regulations and
standards in the execution of its policies;
e.
an assurance that US forces will not intentionally release any hazardous materials or hazardous waste owned
by it and, if a spill occurs, shall expeditiously take action in
order to contain and address environmental contamination
resulting from the spill;
f.
a vague reference on probable US support to the modernization of the AFP, citing Article II of the Mutual Defense
Treaty, that: the Parties separately and jointly by self-help
and mutual aid will maintain and develop their individual
111
MEMORANDUM
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
349.
supporting the Parties shared goal of improving interoperability of the Parties forces, and for the AFP addressing capabilities gaps, promoting long-term modernization, and helping maintain and develop additional
maritime security maritime domain awareness, and humanitarian assistance and disaster relief capabilities.
350.
351.
352.
112
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
353.
In Philippine Treaty Law and Practice 130 written by Ambassador J. Eduardo Malaya, respondent herein, and Maria Antonina
Mendoza-Oblena, they admit that the substantive content of
Philippine foreign policy is anchored on the Constitution, specifically the precepts that in the countrys relations with other
states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to
self-determination, and that the country adheres to the policy of
peace, equality, justice, freedom, cooperation, and amity with
all nations, citing Article II, Sections 2 and 7 of the Constitution.
354.
Despite the clear mandate of this constitutional provision, however, respondents entered into the unequal agreement called
EDCA in betrayal of our national interest.
355.
357.
113
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
JUSTICE DE CASTRO: I just want to know if you agree that we gave tax
exemption.
ACTING SOLICITOR GENERAL HILBAY: That is true.
JUSTICE DE CASTRO: We exempt them from immigration rules.
ACTING SOLICITOR GENERAL HILBAY: That is true, Your Honor.
JUSTICE DE CASTRO: We did not ask them to pay rent, we waived
criminal jurisdiction but they did not waive criminal jurisdiction, which
means that they are on the receiving end, we are the ones giving
concessions to the U.S. And because of that, there is no need for them to
go to the Senate for concurrence; there is no need for a treaty because
everything that they entered into in the agreement with the Philippines
would only involve all the constitutional prerogative of the U.S. President
as Commander-in-Chief of the Armed Forces.
ACTING SOLICITOR GENERAL HILBAY: That is true, that is true, Your
Honor.131
359. It is of no moment that the second sentence of Article III, paragraph 3 of the EDCA states that: United States forces shall
cover their necessary operational expenses with respect to their
activities at the Agreed Locations. That is stating the obvious
consequence of US forces activities at the agreed locations.
On the other hand, it merely emphasizes its inconsistency with
paragraph 6 of the same Article and with Article X, paragraph 1,
which provide that:
United States forces shall be responsible on the
basis of proportionate use for construction,
development, operation, and maintenance costs at
Agreed Locations. Specific funding arrangements
may be defined in implementing arrangements.
(Article III, par. 6)
All obligations under this Agreement are subject to
the availability of appropriated funds authorized for
these purposes. (Article X, Par. 1)
360.
131
132
114
MEMORANDUM
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
115
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
116
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
2.
117
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
133
Ibid., p. 69.
118
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
119
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
374.
375.
120
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
376.
377.
378.
Another disreputable PMC is Blackwater USA which was renamed Worldwide in 2007, Xe Services in 2009, and Academi in 2011, due to scandals over misbehavior by its employees in Iraq. It was founded by former Navy SEAL and fundamentalist Christian Erik Prince. 136
Blackwater was sued under the Alien Tort Claims Act on behalf
of an injured Iraqi and the families of three of 17 Iraqis killed by
Blackwater employees during the September 16, 2007, Blackwater Baghdad shootings.137
379.
380.
135
136
http://www.nndb.com/company/462/000105147/
137
http://en.wikipedia.org/wiki/Blackwater_Worldwide
Ibid.
138
121
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
Ibid.
122
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
The grant to the US of the unbridled authority to select its contractors poses great danger to the safety and security of the
Filipino people. It ought to be considered that despite DynCorps notoriety worldwide, for example, the US still awarded it
a contract modification valued at $44.9 million, under a previously awarded Naval Facilities Engineering Command-Pacific contract to provide operations support services within
the Republic of the Philippines.141
140
123
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
383.
384.
a.
b.
124
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BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
388.
Another misleading provision in the EDCA is that The prepositioned materiel shall not include nuclear weapons (Article
IV, par. 6).
125
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
126
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
127
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
128
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
142
129
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
399.
130
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
143
131
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
401.
132
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
405.
144
133
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
406.
407.
Indeed, EDCA does not serve and promote our national interest. Rather, it was hatched to protect US economic and security interests and maintain US global power projection and
military superiority at a lower cost, thus:
Whenever possible, we will develop innovative,
low-cost, and small-footprint approaches to
achieve our security objectives, relying on
exercises, rotational presence, and advisory
capabilities.
Ibid., p. 123.
134
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
411. The EDCA will not defend the Philippines against an armed attack by China. Nowhere in the agreement does it say so.
Obama himself did not say so during his April 28 visit to Manila
this year. Even EDCAs supposed mother agreement the MDT
offers no assurance of automatic US retaliation against China.
412. During a hearing of the Senate Foreign Relations Committee on
December 1, 2014, Defense Secretary Voltaire Gazmin admitted that the EDCA and the MDT did not guarantee automatic
US involvement in an armed conflict between the Philippines
and China.
413. Moreover, the largest foreign holder of U.S. debt is China,
which owns more about $1.2 trillion in bills, notes and bonds,
according to the US Department of Treasury. In total, China
owns about 8 percent of publicly held U.S. debt. Of all the holders of U.S. debt China is the third-largest. Such a scenario
would make it very unlikely for the US to go to war against
China.
414. Proponents of EDCA also argue that the US will fill in the gaps
in the AFPs modernization program. Petitioners believe that
EDCA will not lead to AFP modernization. Nowhere in the
EDCA does it state how the AFP will modernize through the
conduct of war games, the rotational deployment of US troops,
the storage or prepositioning of weapons and other forms of interaction with US troops.
415.
The agreement does not say how the AFP will acquire X
amount of weapons, ammunition, vehicles, vessels and technology in exchange for the use of our facilities. In fact, all relocatable or movable items owned by the US forces will be brought
back to the US, leaving us with only empty buildings. They can
bring home literally everything including the kitchen sink.
416.
135
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
417. The Aquino government also argues that the EDCA will help in
Humanitarian Assistance and Disaster Response, citing the benefits of US engagement during Yolanda. There were many
countries who provided assistance during Yolanda. It is only
the US that is seeking a military agreement in exchange for socalled humanitarian assistance. There are other viable forms of
humanitarian assistance and disaster response that does not
require the basing of foreign troops and violation of our sovereignty.
THE EDCA DEPRIVES THE SUPREME COURT
OF ITS JUDICIAL POWER PROVIDED UNDER
ARTICLE VIII, SECTION 1 OF THE CONSTITUTION.
V.
418.
419.
136
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
The word "dispute" covers civil, criminal and administrative issues that may arise in the implementation of EDCA. This
means that Philippine courts have no jurisdiction over civil,
criminal and administrative cases even if the acts giving rise to
these were committed within Philippine territory, against Filipino
persons, and violates the Philippine Constitution and other domestic laws of the country.
421.
422.
423. The Philippine experience with the so-called Subic rape case
under the VFA is a despicable and shameful reminder of what
can transpire again through the EDCA.
424. Despite the fact that the Regional Trial Court of Makati found
L/Cpl. Daniel Smith guilty in 2006 of raping a Filipina, he was
later on secretly taken out of Philippine jail and transferred to a
detention facility under the control of the United States government.
146
147
148
137
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
425. In that case, the VFA provisions controlled the issue of jurisdiction over the person of a convicted US personnel. Under the
VFA,
The confinement or detention by Philippine
authorities of United States personnel shall be
carried out in facilities agreed on by appropriate
Philippine and United States authorities. 149xxx
426. The issue of detention was also the subject of consultations
between the US and the Philippines. To implement the VFA provision on detention, agreements between the states were
reached, as embodied in the Romulo-Kenney Agreements of 19
December 2006 and 22 December 2006, wherein Smith was
returned to the custody of the US at the American Embassy in
Manila.
427.
i.
138
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
430.
431.
432. The EDCA explicitly exempts US forces, contractors and others from the jurisdiction of the Philippine judicial system, to reiterate, Article XI of EDCA reads thus
The Parties agree to resolve any dispute arising
under
this
Agreement
exclusively
through
consultation between the Parties. Disputes and
other matters subject to consultation under this
Agreement shall not be referred to any national
or international court, tribunal, or other similar
body, or to any third party for settlement, unless
otherwise agreed by the Parties.
433.
434.
150
151
139
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
435. Clearly, the very text of EDCA does not support the respondents contention that the dispute being referred to in Article XI
refers only to disputes between the Philippines and the United
States.
152
140
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
436.
438.
440. Justice De Castros statement that disputes referred to in Article XI include labor disputes as well as disputes between a US
contractor and a Filipino supplier is consistent with the position
of Petitioners.
141
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
441.
442.
142
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
445.
In granting US forces and their contractors immunity from prosecution or liability, EDCA clearly deprives the courts of its
judicial power.
446.
143
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
PRAYER
WHEREFORE, petitioners respectfully pray that after due
consideration of the present petition, the Honorable Court declare the
Enhanced Defense Cooperation Agreement (EDCA) entered into by
the respondents for the Philippine government, with the United States
of America, UNCONSTITUTIONAL AND INVALID and to permanently
enjoin its implementation.
The petitioners also pray that upon the Honorable Court issue a
Temporary Restraining Order (TRO) or injunction ordering the
respondents to cease and desist from implementing EDCA and from
performing any and all acts relative thereto.
Other forms of relief just and equitable under the premises are
likewise prayed for.
Makati City for Manila City. December 15, 2014 .
PUBLIC INTEREST LAW CENTER
Counsel for Petitioners
4/F Kaija Bldg. 7836 Makati Ave.
corner Valdez St., Makati City
144
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
AMYLYN B. SATO
IBP No. 951804; 01/06/14; Q.C.
PTR No. 9079643; 01/07/14; Q.C.
Roll No. 50389
MCLE Compliance
Number IV-0019952; 05-06-13
145
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444
EPHRAIM B. CORTEZ
IBP No. 961188 - 2/4/2014 - Isabela
PTR No. 9254662B - 1/24/2014- Quezon City
Roll of Attorneys No. 41366
MCLE Compliance No. IV-0018068 - 04/25/2013
Copy Furnished:
146
MEMORANDUM
RENE A.V. SAGUISAG, ET AL VS. EXEC. SECRETARY PAQUITO OCHOA, ET AL, G.R. NO. 212426
BAYAN, BAYAN MUNA, ET AL VS. DEFENSE SEC. VOLTAIRE GAZMIN, ET AL.,
G.R. NO. 212444