EN BANC

EN BANC

G.R. NO. 175888 - ZUSETTE NICOLAS Y SOMBILON, Petitioner, versus ALBERTO ROMULO, ET AL., Respondents.

G.R. NO. 176051 - JOVITO R. SALONGA, ET AL., Petitioners, versus DANIEL SMITH, ET AL., Respondents.

G.R. NO. 176222 - BAGONG ALYANSANG MAKABAYAN (BAYAN), ET AL., Petitioners, versus PRESIDENT GLORIA MACAPAGAL-ARROYO, ET AL., Respondents.

Promulgated:

February 11, 2009

x---------------------------------------------------------------------------------------------------------x

DISSENTING OPINION

CARPIO, J.:

I dissent because of a supervening event that took place after this Court decided Bayan v. Zamora[1] on 10 October 2000. In Bayan, this Court ruled that the Visiting Forces Agreement (VFA) between the Philippines and the United States of America was constitutional, having complied with Section 25, Article XVIII of the Philippine Constitution.

On 25 March 2008, the United States Supreme Court, in Medellin v. Texas,[2] ruled that a treaty, even if ratified by the United States Senate, is not enforceable as domestic federal law in the United States, unless the U.S. Congress enacts the implementing legislation, or the treaty by its terms is self-executory and ratified by the U.S. Senate as such.

Under Medellin, the VFA is indisputably not enforceable as domestic federal law in the United States. On the other hand, since the Philippine Senate ratified the VFA, the VFA constitutes domestic law in the Philippines. This unequal legal status of the VFA violates Section 25, Article XVIII of the Philippine Constitution, which specifically requires that a treaty involving the presence of foreign troops in the Philippines must be equally binding on the Philippines and on the other contracting State.

In short, the Philippine Constitution bars the efficacy of such a treaty that is enforceable as domestic law only in the Philippines but unenforceable as domestic law in the other contracting State. The Philippines is a sovereign and independent State. It is no longer a colony of the United States. This Court should not countenance an unequal treaty that is not only contrary to the express mandate of the Philippine Constitution, but also an affront to the sovereignty, dignity and independence of the Philippine State.

There is no dispute that Section 25, Article XVIII of the Philippine Constitution governs the constitutionality of the VFA. Section 25 states:

Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. (Emphasis supplied)

The clear intent of the phrase “recognized as a treaty by the other contracting State” is to insure that the treaty has the same legal effect on the Philippines as on the other contracting State. This requirement is unique to agreements involving the presence of foreign troops in the Philippines, along with the requirement, if Congress is so minded, to hold a national referendum for the ratification of such a treaty.

The deliberations of the Constitutional Commission reveal the sensitivity of the framers to the “unacceptable asymmetry” of the then existing military bases agreement between the Philippines and the United States. The Philippine Senate had ratified the military bases agreement but the United States Government refused to submit the same to the U.S. Senate for ratification. Commissioner Blas Ople explained this “unacceptable asymmetry” in this manner:

x x x But I think we have acknowledged starting at the committee level that the bases agreement was ratified by our Senate; it is a treaty under Philippine law. But as far as the Americans are concerned, the Senate never took cognizance of this and, therefore, it is an executive agreement. That creates a wholly unacceptable asymmetry between the two countries. Therefore, in my opinion, the right step to take, if the government of our country will deem it in the national interest to terminate this agreement or even to renegotiate it, is that we must begin with a clean slate; we should not be burdened by the flaws of the 1947 Military Bases Agreement. I think that is a very important point. I am glad to be reassured by the two Gentlemen that there is nothing in these proposals that will bar the Philippine government at the proper time from exercising the option of abrogation or termination.[3] (Emphasis supplied)

Eventually, the Constitutional Commission required that any agreement involving the presence of foreign troops in the Philippines must be “recognized as a treaty by the other contracting State.” This means that the other contracting State must recognize the agreement as a treaty, as distinguished from any other agreement, and if its constitutional processes require, submit the agreement to its proper legislative body for ratification as a treaty. As explained by Commissioner Father Joaquin Bernas, S.J., during the deliberations of the Constitutional Commission:

Third, on the last phrase "AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING NATION," we enter into a treaty and we want the other contracting party to respect that document as a document possessing force in the same way that we respect it. The present situation we have is that the bases agreement is a treaty as far as we are concerned, but it is only an executive agreement as far as the United States is concerned, because the treaty process was never completed in the United States because the agreement was not ratified by the Senate.

So, for these reasons, I oppose the deletion of this section because, first of all, as I said, it does not prevent renegotiation. Second, it respects the sovereignty of our people and the people will be in a better position to judge whether to accept the treaty or not, because then they will be voting not just on an abstraction but they will be voting after examination of the terms of the treaty negotiated by our government. And third, the requirement that it be recognized as a treaty by the other contracting nation places us on the same level as any other contracting party.[4] (Emphasis supplied)

The following exchanges in the Constitutional Commission explain further the meaning of the phrase “recognized as a treaty by the other contracting State”:

FR. BERNAS: Let me be concrete, Madam President, in our circumstances. Suppose they were to have this situation where our government were to negotiate a treaty with the United States, and then the two executive departments in the ordinary course of negotiation come to an agreement. As our Constitution is taking shape now, if this is to be a treaty at all, it will have to be submitted to our Senate for its ratification. Suppose, therefore, that what was agreed upon between the United States and the executive department of the Philippines is submitted and ratified by the Senate, then it is further submitted to the people for its ratification and subsequently, we ask the United States: "Complete the process by accepting it as a treaty through ratification by your Senate as the United States Constitution requires," would such an arrangement be in derogation of sovereignty?

MR. NOLLEDO: Under the circumstances the Commissioner just mentioned, Madam President, on the basis of the provision of Section 1 that "sovereignty resides in the Filipino people," then we would not consider that a derogation of our sovereignty on the basis and expectation that there was a plebiscite.[5]

x x x

FR. BERNAS: As Commissioner Romulo indicated, since this certainly would refer only to the United States, because it is only the United States that would have the possibility of being allowed to have treaties here, then we would have to require that the Senate of the United States concur in the treaty because under American constitutional law, there must be concurrence on the part of the Senate of the United States to conclude treaties.

MR. SUAREZ: Thank you for the clarification.

Under the 1935 Constitution, if I recall it correctly, treaties and agreements entered into require an exchange of ratification. I remember that is how it was worded. We do not have in mind here an exchange of ratification by the Senate of the United States and by the Senate of the Philippines, for instance, but only an approval or a recognition by the Senate of the United States of that treaty.

FR. BERNAS: When I say that the other contracting state must recognize it as a treaty, by that I mean it must perform all the acts required for that agreement to reach the status of a treaty under their jurisdiction.[6] (Emphasis supplied)

Thus, Section 25, Article XVIII of the Philippine Constitution requires that any agreement involving the presence of foreign troops in the Philippines must be equally legally binding both on the Philippines and on the other contracting State. This means the treaty must be enforceable under Philippine domestic law as well as under the domestic law of the other contracting State. Even Justice Adolfo S. Azcuna, the ponente of the majority opinion, and who was himself a member of the Constitutional Commission, expressly admits this when he states in his ponencia:

The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation where the terms and conditions governing the presence of foreign armed forces in our territory were binding on us but not upon the foreign State. (Emphasis supplied)

An “equally binding” treaty means exactly what it says - the treaty is enforceable as domestic law in the Philippines and likewise enforceable as domestic law in the other contracting State.

Medellin has stunned legal scholars in the United States and there is no escaping its legal effect on the VFA here in the Philippines. Even U.S. President George W. Bush had to bow to the ruling that he had no authority to enforce the Vienna Convention on Consular Relations in the United States in the absence of any implementing legislation by the U.S. Congress, despite the fact that the U.S. Senate had ratified the Convention. Medellin tersely states:

In sum, while treaties “may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” (Emphasis supplied)

To drive home the point that the U.S. President cannot enforce the Convention in the United States, Medellin states that the “President’s authority to act, as with the exercise of any governmental power, ‘must stem either from an act of Congress or from the Constitution itself.’”

Medellin acknowledges that even if the treaty is not enforceable under U.S. domestic law, it may still give rise to an obligation under international law on the part of the United States. The remedy of the other contracting State in case of breach of the treaty by the United States is to file an action before the International Court of Justice (ICJ). However, the United States will have to give its consent to the ICJ’s jurisdiction because, as stated in Medellin, the United States had withdrawn in 1985 its advance consent to the general compulsory jurisdiction of the ICJ.

Assuming the United States consents to the ICJ’s jurisdiction, any adverse decision against the United States would still be unenforceable under U.S. domestic law for the two reasons stated in Medellin. First, consent to the ICJ’s jurisdiction is not consent to be bound by any decision of the ICJ. As Medellin puts it, “submitting to jurisdiction and agreeing to be bound are two different things.”

Second, decisions of the ICJ have no immediate legal effect on U.S. domestic courts. ICJ decisions are not directives to domestic courts but matters addressed to the political branches of the State. As Medellin explains it:

The obligation on the part of signatory nations to comply with ICJ judgments derives not from the Optional Protocol, but rather from Article 94 of the United Nations Charter - the provision that specifically addresses the effect of ICJ decisions. Article 94(1) provides that “[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party.” x x x (emphasis added). The Executive Branch contends that the phrase “undertakes to comply” is not “an acknowledgement that an ICJ decision will have immediate legal effect in the courts of U.N. members,” but rather “a commitment on the part of U.N. Members to take future action through their political branches to comply with an ICJ decision.” x x x.

We agree with this construction of Article 94. The Article is not a directive to domestic courts. It does not provide that the United States “shall” or “must” comply with an ICJ decision, nor indicate that the Senate that ratified the U.N. Charter intended to vest ICJ decisions with immediate legal effect in domestic courts. Instead, “[t]he words of Article 94 ... call upon governments to take certain action.” x x x.

How then should the other contracting State enforce the ICJ decision against the United States if the political branches of the United States refuse to enforce the ICJ decision? Medellin points to Article 94(2) of the United Nations Charter, which provides that ICJ decisions shall be referred to the United Nations Security Council for enforcement if the losing State refuses to be bound by the ICJ decision. Medellin states:

The U.N. Charter's provision of an express diplomatic - that is, nonjudicial - remedy is itself evidence that ICJ judgments were not meant to be enforceable in domestic courts. x x x First, the Security Council must “dee[m] necessary” the issuance of a recommendation or measure to effectuate the judgment. x x x. Second, as the President and Senate were undoubtedly aware in subscribing to the U.N. Charter and Optional Protocol, the United States retained the unqualified right to exercise its veto of any Security Council resolution.

This was the understanding of the Executive Branch when the President agreed to the U.N. Charter and the declaration accepting general compulsory ICJ jurisdiction. x x x (“[I]f a state fails to perform its obligations under a judgment of the [ICJ], the other party may have recourse to the Security Council”); x x x (“[W]hen the Court has rendered a judgment and one of the parties refuses to accept it, then the dispute becomes political rather than legal. It is as a political dispute that the matter is referred to the Security Council”); x x x (while parties that accept ICJ jurisdiction have “a moral obligation” to comply with ICJ decisions, Article 94(2) provides the exclusive means of enforcement). (Emphasis supplied)

Obviously, the Philippines cannot take comfort that the VFA can still give rise to an obligation under international law on the part of the United States, even as the VFA does not constitute domestic law in the United States. Assuming that the United States will submit to the jurisdiction of the ICJ, the futility of relying on the Security Council to enforce the ICJ decision is apparent. In the chilling words of Medellin, “the United States retained the unqualified right to exercise its veto of any Security Council resolution.” The only way to avoid this veto of the United States is to make the treaty part of U.S. domestic law.

It would be naïve and foolish for the Philippines, or for any other State for that matter, to implement as part of its domestic law a treaty that the United States does not recognize as part of its own domestic law. That would only give the United States the “unqualified right” to free itself from liability for any breach of its own obligation under the treaty, despite an adverse ruling from the ICJ.

The wisdom of the framers in crafting Section 25, Article XVIII of the Philippine Constitution is now apparent. The other contracting State must “recognize as a treaty” any agreement on the presence of foreign troops in the Philippines, and such treaty must be equally binding on the Philippines and on the other contracting State. In short, if the treaty is part of domestic law of the Philippines, it must also be part of domestic law of the other contracting State. Otherwise, the treaty cannot take effect in the Philippines.

Medellin recognized that at least some 70-odd treaties of the United States would be affected by the ruling that a treaty, even if ratified by the U.S. Senate, is not self-executory. Medellin even proffered a solution - legislation by the U.S. Congress giving wholesale effect to such ratified treaties. Medellin explains:

The dissent worries that our decision casts doubt on some 70-odd treaties under which the United States has agreed to submit disputes to the ICJ according to “roughly similar” provisions. x x x Again, under our established precedent, some treaties are self-executing and some are not, depending on the treaty. That the judgment of an international tribunal might not automatically become domestic law hardly means the underlying treaty is “useless.” x x x Such judgments would still constitute international obligations, the proper subject of political and diplomatic negotiations. x x x And Congress could elect to give them wholesale effect (rather than the judgment-by-judgment approach hypothesized by the dissent, x x x) through implementing legislation, as it regularly has. x x x (Emphasis supplied)

The VFA is not among the 70-odd treaties because the United States does not even consider the VFA a treaty but merely an executive agreement. The U.S. Senate did not ratify the VFA because under the United States Constitution only treaties are required to be ratified. The important difference between a treaty and an executive agreement is that a ratified treaty automatically repeals a prior inconsistent law, while an executive agreement cannot but must be consistent with existing laws. The U.S. State Department has explained the distinction between treaties and executive agreements in this manner:

x x x it may be desirable to point out here the well-recognized distinction between an executive agreement and a treaty. In brief, it is that the former cannot alter the existing law and must conform to all statutory enactments, whereas a treaty, if ratified by and with the advice and consent of two-thirds of the Senate, as required by the Constitution, itself becomes the supreme law of the land and takes precedence over any prior statutory enactments.[7]

With Medellin, the treaty must not only be ratified, but must also be ratified as self-executory, or an implementing legislation must be adopted, before it can repeal a prior inconsistent law.

Executive agreements are not ratified by the U.S. Senate but merely notified to the U.S. Congress under the Case-Zablocki Act, which does not apply to treaties. Notification under the Case-Zablocki Act does not enact the executive agreement into domestic law of the United States. On the other hand, “the failure to transmit to Congress under the Case-Zablocki Act x x x does not alter the legal effect of an (executive) agreement.”[8] The Case-Zablocki Act operates merely as a timely notification to the U.S. Congress of the executive agreements, “other than a treaty,” that the U.S. President has entered into with foreign States. This is clear from the provisions of the Case-Zablocki Act:

Section 112b. United States international agreements; transmission to Congress

(a) The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed.

(b) Not later than March 1, 1979, and at yearly intervals thereafter, the President shall, under his own signature, transmit to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate a report with respect to each international agreement which, during the preceding year, was transmitted to the Congress after the expiration of the 60-day period referred to in the first sentence of subsection (a), describing fully and completely the reasons for the late transmittal.

(c) Notwithstanding any other provision of law, an international agreement may not be signed or otherwise concluded on behalf of the United States without prior consultation with the Secretary of State. Such consultation may encompass a class of agreements rather than a particular agreement.

(d) The Secretary of State shall determine for and within the executive branch whether an arrangement constitutes an international agreement within the meaning of this section.

(e) The President shall, through the Secretary of State, promulgate such rules and regulations as may be necessary to carry out this section.[9] (Emphasis supplied)

The Case-Zablocki Act mandates the notification to the U.S. Congress of executive agreements “other than a treaty.” The purpose of the Case-Zablocki Act is “to address the lack of legal constraints over the President’s choice of the form of an agreement,”[10] whether an executive agreement or a treaty. It allows the U.S. Congress to timely monitor if an agreement is mislabeled as an executive agreement when it should be a treaty subject to U.S. Senate ratification. As one commentator explained:

If Congress is dissatisfied with the character or lack of consultation on the form of an agreement, or with the content of the agreement itself, it has other means of making its displeasure known. In the exercise of its oversight power, Congress could hold hearings, as it did in 1976 on the United States-Turkish Defense Cooperation Agreement, to consider the merits of concluding such an agreement at a time of tension involving one or more nations relevant to the agreement. At any time Congress can also modify an executive agreement, as it can a treaty, by enacting subsequent contrary legislation. Congress has taken such action in the past, regrettably placing the United States in the position of breaching the agreement under international law. Finally, Congress could withhold funding for an executive agreement. To date, Congress has not exercised its “spending power” in this manner, except as to isolated issues. “Spending power” is likely to be used by Congress only as a last resort.[11]

The fact that the U.S. State Department notified the VFA to the U.S. Congress under the Case-Zablocki Act, and the U.S. Congress has not objected to the characterization of the VFA as an executive agreement, is incontrovertible proof that the VFA is not a treaty but merely an executive agreement as far as the United States Government is concerned. In short, the United States does not recognize the VFA as a treaty. It is also an admission that the VFA does not have the status of domestic law in the United States. Notification under the Case-Zablocki Act is obviously far less significant legally than ratification by the U.S. Senate of a treaty. If a ratified treaty does not automatically become part of U.S. domestic law under Medellin, with more reason a merely notified executive agreement does not form part of U.S. domestic law.

Clearly, the United States Government does not recognize the VFA as a treaty but merely as an executive agreement. For the VFA to be constitutional under Section 25, Article XVIII of the Philippine Constitution, the United States must first recognize the VFA as a treaty, and then ratify the VFA to form part of its domestic law. In the words of Father Bernas, the United States must “[c]omplete the process by accepting [the VFA] as a treaty through ratification by [the U.S.] Senate as the United States Constitution requires.” Medellin has now added the further requirement that the U.S. Congress must adopt an implementing legislation to the VFA, or the VFA must be renegotiated to make it self-executory and ratified as such by the U.S. Senate. Unless and until this is done, the VFA is not “recognized as a treaty” by the United States, and thus it cannot be given effect in the Philippines.

Under Medellin, the 1952 RP-US Mutual Defense Treaty (MDT) is not part of the domestic law of the United States and the U.S. President has no power to enforce the MDT under U.S. domestic law. Based on the Medellin requirements for a treaty to be binding and enforceable under U.S. domestic law, the MDT suffers the same fate as the Vienna Convention on Consular Relations. Both the MDT and the Convention were ratified by the U.S. Senate. However, both the MDT and the Convention contain only the usual ratification and entry into force provisions found in treaties. Thus:

Vienna Convention on Consular Relations

Article 75

Ratification

The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

x x x

Article 77

Entry into force

1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations.

2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.

RP-US Mutual Defense Treaty

Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United States of America in accordance with their respective constitutional processes and will come into force when instruments of ratification thereof have been exchanged by them in Manila.

Both the MDT and the Convention do not contain any provision making them self-executory once ratified by the U.S. Senate. The U.S. Congress has also not adopted any implementing legislation for the MDT or the Convention. Consequently, the VFA, as an executive agreement, cannot depend for its legal efficacy on the MDT because the MDT itself, under Medellin, is not binding and enforceable under U.S. domestic law, just like the Convention.

In summary, the VFA fails to comply with Section 25, Article XVIII of the Philippine Constitution requiring the United States to “recognize as a treaty” the VFA. This Court cannot allow the implementation of the VFA by the Philippine Government unless and until the United States recognizes the VFA as a treaty. This means that the VFA must be ratified by the U.S. Senate and made part of U.S. domestic law in accordance with Medellin. Only when this process is completed can this Court allow the implementation of the VFA. In the meantime, the accused Lance Corporal Daniel Smith of the U.S. Armed Forces should be subject to the same Philippine laws governing an accused in similar cases, without the application of the VFA or its subsidiary agreements.

Accordingly, I vote to (1) DECLARE the Visiting Forces Agreement incomplete and ineffective and thus UNENFORCEABLE, and to (2) ORDER the Director-General of the Philippine National Police, as well as the Secretary of Foreign Affairs, to immediately cause the transfer of the accused Lance Corporal Daniel Smith from the custody of the U.S. Embassy in Manila to the New Bilibid prison in Muntinlupa pending final resolution of his appeal from conviction for the crime of rape.

ANTONIO T. CARPIO

Associate Justice

[1] 396 Phil. 623 (2000).

[2] 128 S.Ct. 1346; 170 L.Ed.2d 190.

[3] Vol. 4, Records of the Constitutional Commission, p. 780.

[7] Prof. Edwin Borchard (Justus S. Hotchkiss Professor of Law, Yale Law School), Treaties and Executive Agreements – A Reply, Yale Law Journal, June 1945, citing Current Information Series, No. 1, 3 July 1934, quoted in 5 Hackworth, Digest of International Law (1943) pp. 425-6.

[8] Dr. Richard J. Erickson, The Making of Executive Agreements by the United States Department of Defense: An Agenda for Progress, Boston University International Law Journal, Spring 1995.

[9] Case-Zablocki Act of 22 August 1972 -- 1 USC 112b.