and that after due notice and hearing, that judgment be rendered the constitutionality of the joint exercise.

ercise.2 They were joined

issuing a permanent writ of injunction and/or prohibition against subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA,
the deployment of U.S. troops in Basilan and Mindanao for being both party-Iist organizations, who filed a petition-in-intervention
illegal and in violation of the Constitution. on February 11, 2002.

The facts are as follows: Lim and Ersando filed suit in their capacities as citizens, lawyers
and taxpayers. SANLAKAS and PARTIDO, on the other hand, aver
Beginning January of this year 2002, personnel from the armed that certain members of their organization are residents of
forces of the United States of America started arriving in Zamboanga and Sulu, and hence will be directly affected by the
EN BANC operations being conducted in Mindanao. They likewise pray for a
Mindanao to take part, in conjunction with the Philippine
military, in "Balikatan 02-1." These so-called "Balikatan" exercises relaxation on the rules relative to locus standi citing the
G.R. No. 151445 April 11, 2002 are the largest combined training operations involving Filipino unprecedented importance of the issue involved.
and American troops. In theory, they are a simulation of joint
military maneuvers pursuant to the Mutual Defense Treaty, 1 a On February 71 2002 the Senate conducted a hearing on the
bilateral defense agreement entered into by the Philippines and "Balikatan" exercise wherein Vice-President Teofisto T. Guingona,
the United States in 1951. Jr., who is concurrently Secretary of Foreign. Affairs, presented
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners, the Draft Terms of Reference (TOR).3 Five days later, he approved
vs. Prior to the year 2002, the last "Balikatan" was held in 1995. This the TOR, which we quote hereunder:
HONORABLE EXECUTIVE SECRETARY as alter ego of HER was due to the paucity of any formal agreement relative to the
EXCELLENCEY GLORIA MACAPAGAL-ARROYO, and HONORABLE treatment of United States personnel visiting the Philippines. In I. POLICY LEVEL
ANGELO REYES in his capacity as Secretary of National the meantime, the respective governments of the two countries
Defense, respondents. agreed to hold joint exercises on a reduced scale. The lack of 1. The Exercise shall be consistent with the Philippine
consensus was eventually cured when the two nations concluded Constitution and all its activities shall be in consonance with the
---------------------------------------- the Visiting Forces Agreement (V FA) in 1999. laws of the land and the provisions of the RP-US Visiting Forces
Agreement (VFA).
SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners- The entry of American troops into Philippine soil is proximately
intervenors, rooted in the international anti-terrorism campaign declared by 2. The conduct of this training Exercise is in accordance with
vs. President George W. Bush in reaction to the tragic events that pertinent United Nations resolutions against global terrorism as
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO occurred on September 11, 2001. On that day, three (3) understood by the respective parties.
REYES, respondents. commercial aircrafts were hijacked, flown and smashed into the
twin towers of the World Trade Center in New York City and the 3. No permanent US basing and support facilities shall be
DISSENTING OPINION Pentagon building in Washington, D.C. by terrorists with alleged established. Temporary structures such as those for troop
links to the al-Qaeda ("the Base"), a Muslim extremist billeting, classroom instruction and messing may be set up for use
SEPARATE OPINION organization headed by the infamous Osama bin Laden. Of no by RP and US Forces during the Exercise.
comparable historical parallels, these acts caused billions of
DE LEON, JR., J.: dollars worth of destruction of property and incalculable loss of
4. The Exercise shall be implemented jointly by RP and US
hundreds of lives.
Exercise Co-Directors under the authority of the Chief of Staff,
This case involves a petition for certiorari and prohibition as well AFP. In no instance will US Forces operate independently during
as a petition-in-intervention, praying that respondents be On February 1, 2002, petitioners Arthur D. Lim and Paulino P. field training exercises (FTX). AFP and US Unit Commanders will
restrained from proceeding with the so-called "Balikatan 02-1" Ersando filed this petition for certiorari and prohibition, attacking retain command over their respective forces under the overall
authority of the Exercise Co-Directors. RP and US participants b. At no time shall US Forces operate independently within RP Contemporaneously, Assistant Secretary for American Affairs
shall comply with operational instructions of the AFP during the territory. Minerva Jean A. Falcon and United States Charge d'
FTX. Affaires Robert Fitts signed the Agreed Minutes of the discussion
c. Flight plans of all aircraft involved in the exercise will comply between the Vice-President and Assistant Secretary Kelly.4
5. The exercise shall be conducted and completed within a period with the local air traffic regulations.
of not more than six months, with the projected participation of Petitioners Lim and Ersando present the following arguments:
660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP 2. ADMINISTRATION & LOGISTICS
shall direct the Exercise Co-Directors to wind up and terminate I
the Exercise and other activities within the six month Exercise a. RP and US participants shall be given a country and area
period. briefing at the start of the Exercise. This briefing shall acquaint US THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL
Forces on the culture and sensitivities of the Filipinos and the DEFENSE TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY
6. The Exercise is a mutual counter-terrorism advising, assisting provisions of the VF A. The briefing shall also promote the full ASSIST ANCE IN ACCORDANCE WITH THE 'CONSTITUTIONAL
and training Exercise relative to Philippine efforts against the cooperation on the part of the RP and US participants for the PROCESSE-S' OF EACH COUNTRY ONLY IN THE CASE OF AN
ASG, and will be conducted on the Island of Basilan. Further successful conduct of the Exercise. ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A
advising, assisting and training exercises shall be conducted in THIRD COUNTRY AGAINST ONE OF THEM.
Malagutay and the Zamboanga area. Related activities in Cebu b. RP and US participating forces may share, in accordance with
will be for support of the Exercise. their respective laws and regulations, in the use of their BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE
resources, equipment and other assets. They will use their ABU SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL
7. Only 160 US Forces organized in 12-man Special Forces Teams respective logistics channels. ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN
shall be deployed with AFP field, commanders. The US teams shall ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY
remain at the Battalion Headquarters and, when approved, c. Medical evaluation shall be jointly planned and executed ASSISTANCE UNDER THE MDT OF 1951.
Company Tactical headquarters where they can observe and utilizing RP and US assets and resources.
assess the performance of the AFP Forces. II
d. Legal liaison officers from each respective party shall be
8. US exercise participants shall not engage in combat, without appointed by the Exercise Directors. NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN
prejudice to their right of self-defense. SOLDIERS TO ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE
3. PUBLIC AFFAIRS TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON".
9. These terms of Reference are for purposes of this Exercise only
and do not create additional legal obligations between the US Substantially the same points are advanced by petitioners
a. Combined RP-US Information Bureaus shall be established at
Government and the Republic of the Philippines. SANLAKAS and PARTIDO.
the Exercise Directorate in Zamboanga City and at GHQ, AFP in
Camp Aguinaldo, Quezon City.
II. EXERCISE LEVEL In his Comment, the Solicitor General points to infirmities in the
b. Local media relations will be the concern of the AFP and all petitions regarding, inter alia, Lim and Ersando's standing to file
1. TRAINING public affairs guidelines shall be jointly developed by RP and US suit, the prematurity of the action, as well as the impropriety of
Forces. availing of certiorari to ascertain a question of fact. Anent
a. The Exercise shall involve the conduct of mutual military their locus standi, the Solicitor General argues that first, they may
assisting, advising and training of RP and US Forces with the c. Socio-Economic Assistance Projects shall be planned and not file suit in their capacities as, taxpayers inasmuch as it has not
primary objective of enhancing the operational capabilities of executed jointly by RP and US Forces in accordance with their been shown that "Balikatan 02-1 " involves the exercise of
both forces to combat terrorism. respective laws and regulations, and in consultation with Congress' taxing or spending powers. Second, their being lawyers
community and local government officials. does not invest them with sufficient personality to initiate the
case, citing our ruling in Integrated Bar of the Philippines v. since then applied the exception in many other cases. [citation technological capabilities of our armed forces through joint
Zamora.5 Third, Lim and Ersando have failed to demonstrate the omitted] training with its American counterparts; the "Balikatan" is the
requisite showing of direct personal injury. We agree. largest such training exercise directly supporting the MDT's
This principle was reiterated in the subsequent cases of Gonzales objectives. It is this treaty to which the V FA adverts and the
It is also contended that the petitioners are indulging in vs. COMELEC, Daza vs. Singson, and Basco vs. Phil, Amusement obligations thereunder which it seeks to reaffirm.
speculation. The Solicitor General is of the view that since the and Gaming Corporation, where we emphatically held:
Terms of Reference are clear as to the extent and duration of The lapse of the US-Philippine Bases Agreement in 1992 and the
"Balikatan 02-1," the issues raised by petitioners are premature, Considering however the importance to the public of the case at decision not to renew it created a vacuum in US-Philippine
as they are based only on a fear of future violation of the Terms bar, and in keeping with the Court's duty, under the 1987 defense relations, that is, until it was replaced by the Visiting
of Reference. Even petitioners' resort to a special civil action for Constitution, to determine whether or not the other branches of Forces Agreement. It should be recalled that on October 10,
certiorari is assailed on the ground that the writ may only issue the government have kept themselves within the limits of the 2000, by a vote of eleven to three, this Court upheld the validity
on the basis of established facts. Constitution and the laws that they have not abused the of the VFA.7 The V FA provides the "regulatory mechanism" by
discretion given to them, the Court has brushed aside which "United States military and civilian personnel [may visit]
Apart from these threshold issues, the Solicitor General claims technicalities of procedure and has taken cognizance of this temporarily in the Philippines in connection with activities
that there is actually no question of constitutionality involved. petition. xxx' approved by the Philippine Government." It contains provisions
The true object of the instant suit, it is said, is to obtain an relative to entry and departure of American personnel, driving
interpretation of the V FA. The Solicitor General asks that we Again, in the more recent case of Kilosbayan vs. Guingona, Jr., and vehicle registration, criminal jurisdiction, claims, importation
accord due deference to the executive determination that this Court ruled that in cases of transcendental importance, the and exportation, movement of vessels and aircraft, as well as the
"Balikatan 02-1" is covered by the VFA, considering the Court may relax the standing requirements and allow a suit to duration of the agreement and its termination. It is the VFA which
President's monopoly in the field of foreign relations and her role prosper even where there is no direct injury to the party gives continued relevance to the MDT despite the passage of
as commander-in-chief of the Philippine armed forces. claiming the right of judicial review. years. Its primary goal is to facilitate the promotion of optimal
cooperation between American and Philippine military forces in
Given the primordial importance of the issue involved, it will the event of an attack by a common foe.
Although courts generally avoid having to decide a constitutional
suffice to reiterate our view on this point in a related case: question based on the doctrine of separation of powers, which
enjoins upon the department of the government a becoming The first question that should be addressed is whether "Balikatan
Notwithstanding, in view of the paramount importance and the respect for each other's act, this Court nevertheless resolves to 02-1" is covered by the Visiting Forces Agreement. To resolve this,
constitutional significance of the issues raised in the petitions, take cognizance of the instant petition.6 it is necessary to refer to the V FA itself: Not much help can be
this Court, in the exercise of its sound discretion, brushes aside had therefrom, unfortunately, since the terminology employed is
the procedural barrier and takes cognizance of the petitions, as itself the source of the problem. The VFA permits United States
Hence, we treat with similar dispatch the general objection to the
we have done in the early Emergency Powers Cases, where we personnel to engage, on an impermanent basis, in "activities," the
supposed prematurity of the action. At any rate, petitioners'
had occasion to rule: exact meaning of which was left undefined. The expression is
concerns on the lack of any specific regulation on the latitude of
ambiguous, permitting a wide scope of undertakings subject only
activity US personnel may undertake and the duration of their
to the approval of the Philippine government.8 The sole
'x x x ordinary citizens and taxpayers were allowed to question stay has been addressed in the Terms of Reference.
encumbrance placed on its definition is couched in the negative,
the constitutionality of several executive orders issued by
in that United States personnel must "abstain from any
President Quirino although they were involving only an indirect The holding of "Balikatan 02-1" must be studied in the framework
activity inconsistent with the spirit of this agreement, and in
and general interest shared in common with the public. The Court of the treaty antecedents to which the Philippines bound itself. particular, from any political activity."9 All other activities, in other
dismissed the objection that they were not proper parties and The first of these is the Mutual Defense Treaty (MDT, for brevity).
words, are fair game.
ruled that 'transcendental importance to the public of these The MDT has been described as the "core" of the defense
cases demands that they be settled promptly and definitely, relationship between the Philippines and its traditional ally, the
brushing aside, if we must, technicalities of procedure.' We have United States. Its aim is to enhance the strategic and
We are not left completely unaided, however. The Vienna 4. A special meaning shall be given to a term if it is established what is now Article 32 of the Vienna Convention. The distinction
Convention on the Law of Treaties, which contains provisos that the parties so intended. between the general rule of interpretation and the
governing interpretations of international agreements, state: supplementary means of interpretation is intended rather to
Article 32 ensure that the supplementary means do not constitute an
SECTION 3. INTERPRETATION OF TREATIES alternative, autonomous method of interpretation divorced from
Supplementary means of interpretation the general rule.10
Article 31
Recourse may be had to supplementary means of interpretation, The Terms of Reference rightly fall within the context of the VFA.
General rule of interpretation including the preparatory work of the treaty and the
circumstances of its conclusion, in order to confirm the meaning After studied reflection, it appeared farfetched that the ambiguity
1. A treaty shall be interpreted in good faith ill accordance with resulting from the application of article 31, or to determine the surrounding the meaning of the word .'activities" arose from
the ordinary meaning to be given to the tenus of the treaty in meaning when the interpretation according to article 31 : accident. In our view, it was deliberately made that way to give
their context and in the light of its object and purpose. both parties a certain leeway in negotiation. In this manner,
(a) leaves the meaning ambiguous or obscure; or visiting US forces may sojourn in Philippine territory for purposes
other than military. As conceived, the joint exercises may include
2. The context for the purpose of the interpretation of a treaty
training on new techniques of patrol and surveillance to protect
shall comprise, in addition to the text, including its preamble and (b) leads to a result which is manifestly absurd unreasonable.
the nation's marine resources, sea search-and-rescue operations
annexes:
to assist vessels in distress, disaster relief operations, civic action
It is clear from the foregoing that the cardinal rule of
projects such as the building of school houses, medical and
(a) any agreement relating to the treaty which was made interpretation must involve an examination of the text, which is
humanitarian missions, and the like.
between all the parties in connexion with the conclusion of the presumed to verbalize the parties' intentions. The Convention
treaty; likewise dictates what may be used as aids to deduce the
Under these auspices, the VFA gives legitimacy to the current
meaning of terms, which it refers to as the context of the treaty,
Balikatan exercises. It is only logical to assume that .'Balikatan 02-
(b) any instrument which was made by one or more parties in as well as other elements may be taken into account alongside
1," a "mutual anti- terrorism advising, assisting and training
connexion with the conclusion of the treaty and accepted by the the aforesaid context. As explained by a writer on the Convention
exercise," falls under the umbrella of sanctioned or allowable
other parties as an instrument related to the party . ,
activities in the context of the agreement. Both the history and
intent of the Mutual Defense Treaty and the V FA support the
3. There shall be taken into account, together with the context: [t]he Commission's proposals (which were adopted virtually
conclusion that combat-related activities -as opposed
without change by the conference and are now reflected in
to combat itself -such as the one subject of the instant petition,
(a) any subsequent agreement between the parties regarding the Articles 31 and 32 of the Convention) were clearly based on the
are indeed authorized.
interpretation of the treaty or the application of its provisions; view that the text of a treaty must be presumed to be the
authentic expression of the intentions of the parties; the
That is not the end of the matter, though. Granted that "Balikatan
Commission accordingly came down firmly in favour of the view
(b) any subsequent practice in the application of the treaty which 02-1" is permitted under the terms of the VFA, what may US
that 'the starting point of interpretation is the elucidation of the
establishes the agreement of the parties regarding its forces legitimately do in furtherance of their aim to provide
meaning of the text, not an investigation ab initio into the
interpretation; advice, assistance and training in the global effort against
intentions of the parties'. This is not to say that
terrorism? Differently phrased, may American troops actually
the travauxpreparatoires of a treaty , or the circumstances of its
(c) any relevant rules of international law applicable in the engage in combat in Philippine territory? The Terms of Reference
conclusion, are relegated to a subordinate, and wholly ineffective,
relations between the parties. are explicit enough. Paragraph 8 of section I stipulates that US
role. As Professor Briggs points out, no rigid temporal prohibition
exercise participants may not engage in combat "except in self-
on resort to travaux preparatoires of a treaty was intended by the
defense." We wryly note that this sentiment is admirable in the
use of the phrase 'supplementary means of interpretation' in
abstract but difficult in implementation. The target of "Balikatan
02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly provisions useful in determining the extent to which foreign The aforequoted provisions betray a marked antipathy towards
while the battle is brought to their very doorstep. They cannot be military troops are allowed in Philippine territory. Thus, in the foreign military presence in the country, or of foreign influence in
expected to pick and choose their targets for they will not have Declaration of Principles and State Policies, it is provided that: general. Hence, foreign troops are allowed entry into the
the luxury of doing so. We state this point if only to signify our Philippines only by way of direct exception. Conflict arises then
awareness that the parties straddle a fine line, observing the xxx xxx xxx xxx between the fundamental law and our obligations arising from
honored legal maxim "Nemo potest facere per alium quod non international agreements.
potest facere per directum."11 The indirect violation is actually SEC. 2. The Philippines renounces war as an instrument of
petitioners' worry, that in reality, "Balikatan 02-1 " is actually a national policy, adopts the generally accepted principles of A rather recent formulation of the relation of international
war principally conducted by the United States government, and international law as part of the law of the land and adheres to the law vis-a-vis municipal law was expressed in Philip Morris, Inc. v.
that the provision on self-defense serves only as camouflage to policy of peace, equality, justice, freedom, cooperation, and Court of Appeals,13 to wit:
conceal the true nature of the exercise. A clear pronouncement amity with all nations.
on this matter thereby becomes crucial. xxx Withal, the fact that international law has been made part of
xxx xxx xxx xxx the law of the land does not by any means imply the primacy of
In our considered opinion, neither the MDT nor the V FA allow international law over national law in the municipal sphere.
foreign troops to engage in an offensive war on Philippine Under the doctrine of incorporation as applied in most countries,
SEC. 7. The State shall pursue an independent foreign policy. In its
territory. We bear in mind the salutary proscription stated in the rules of international law are given a standing equal, not superior,
relations with other states the paramount consideration shall be
Charter of the United Nations, to wit: to national legislation.
national sovereignty, territorial integrity, national interest, and
the right to self- determination.
Article 2 This is not exactly helpful in solving the problem at hand since in
SEC. 8. The Philippines, consistent with the national interest, trying to find a middle ground, it favors neither one law nor the
The Organization and its Members, in pursuit of the Purposes adopts and pursues a policy of freedom from nuclear weapons in other, which only leaves the hapless seeker with an unsolved
stated in Article 1, shall act in accordance with the following the country. dilemma. Other more traditional approaches may offer valuable
Principles. insights.
xxx xxx xxx xxx
xxx xxx xxx xxx From the perspective of public international law, a treaty is
favored over municipal law pursuant to the principle of pacta
The Constitution also regulates the foreign relations powers of
4. All Members shall refrain in their international relations from sunt servanda. Hence, "[e]very treaty in force is binding upon the
the Chief Executive when it provides that "[n]o treaty or
the threat or use of force against the territorial integrity or parties to it and must be performed by them in good
international agreement shall be valid and effective unless
political independence of any state, or in any other manner faith."14 Further, a party to a treaty is not allowed to "invoke the
concurred in by at least two-thirds of all the members of the
inconsistent with the Purposes of the United Nations. provisions of its internal law as justification for its failure to
Senate."12 Even more pointedly, the Transitory Provisions state:
perform a treaty."15
xxx xxx xxx xxx Sec. 25. After the expiration in 1991 of the Agreement between
Our Constitution espouses the opposing view. Witness our
the Republic of the Philippines and the United States of America
In the same manner, both the Mutual Defense Treaty and the jurisdiction as I stated in section 5 of Article VIII:
concerning Military Bases, foreign military bases, troops or
Visiting Forces Agreement, as in all other treaties and facilities shall not be allowed in the Philippines except under a
international agreements to which the Philippines is a party, must treaty duly concurred in by the Senate and, when the Congress so The Supreme Court shall have the following powers:
be read in the context of the 1987 Constitution. In particular, the requires, ratified by a majority of the votes cast by the people in a
Mutual Defense Treaty was concluded way before the present national referendum held for that purpose, and recognized as a xxx xxx xxx xxx
Charter, though it nevertheless remains in effect as a valid source treaty by the other contracting state.
of international obligation. The present Constitution contains key
(2) Review, revise, reverse, modify, or affirm on appeal cognizance of newspaper or electronic reports per se, not WHEREFORE, the petition and the petition-in-intervention are
or certiorari, as the law or the Rules of Court may provide, final because of any issue as to their truth, accuracy, or impartiality, hereby DISMISSED without prejudice to the filing of a new
judgments and order of lower courts in: but for the simple reason that facts must be established in petition sufficient in form and substance in the proper Regional
accordance with the rules of evidence. As a result, we cannot Trial Court.
(A) All cases in which the constitutionality or validity of any treaty, accept, in the absence of concrete proof, petitioners' allegation
international or executive agreement, law, presidential decree, that the Arroyo government is engaged in "doublespeak" in trying SO ORDERED.
proclamation, order, instruction, ordinance, or regulation is in to pass off as a mere training exercise an offensive effort by
question. foreign troops on native soil. The petitions invite us to speculate Bellosillo, Melo, Mendoza, Quisumbing, Carpio, JJ., concur.
on what is really happening in Mindanao, to issue I make factual
xxx xxx xxx xxx findings on matters well beyond our immediate perception, and
Kapunan, dissenting opinion.
this we are understandably loath to do.
In Ichong v. Hernandez,16 we ruled that the provisions of a treaty Ynares-Santiago, join the dissenting opinion.
are always subject to qualification or amendment by a It is all too apparent that the determination thereof involves
subsequent law, or that it is subject to the police power of the basically a question of fact. On this point, we must concur with
Panganiban, separate opinion.
State. In Gonzales v. Hechanova,17 the Solicitor General that the present subject matter is not a fit
topic for a special civil action for certiorari. We have held in too
many instances that questions of fact are not entertained in such Davide., Jr., C.J., Puno, Sandoval-Gutierrez, join the main and
xxx As regards the question whether an international agreement separate opinion of J. Panganiban.
a remedy. The sole object of the writ is to correct errors of
may be invalidated by our courts, suffice it to say that the
jurisdiction or grave abuse of discretion: The phrase "grave abuse
Constitution of the Philippines has clearly settled it in the
of discretion" has a precise meaning in law, denoting abuse of
affirmative, by providing, in Section 2 of Article VIII thereof, that
discretion "too patent and gross as to amount to an evasion of a
the Supreme Court may not be deprived "of its jurisdiction to
positive duty, or a virtual refusal to perform the duty enjoined or
review, revise, reverse, modify, or affirm on appeal, certiorari, or
act in contemplation of law, or where the power is exercised in an Footnotes
writ of error as the law or the rules of court may provide, final
arbitrary and despotic manner by reason of passion and personal
judgments and decrees of inferior courts in -( I) All cases in which
hostility."19 1
For ready reference, the text of the treaty is reproduced herein:
the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulation is in question." In other words, our
Constitution authorizes the nullification of a treaty, not only In this connection, it will not be amiss to add that the Supreme "MUTUAL DEFENSE TREATY
when it conflicts with the fundamental law, but, also, when it runs Court is not a trier of facts.20
counter to an act of Congress. BETWEEN THE REPUBLIC OF THE PHILIPPINES
Under the expanded concept of judicial power under the
The foregoing premises leave us no doubt that US forces are Constitution, courts are charged with the duty "to determine AND THE UNITED STATES OF AMERICA
prohibited / from engaging in an offensive war on Philippine whether or not there has been a grave abuse of discretion
territory. amounting to lack or excess of jurisdiction on the part of any
30 August 1951
branch or instrumentality of the government."21 From the facts
obtaining, we find that the holding of "Balikatan 02-1" joint
Yet a nagging question remains: are American troops actively "The parties to this Treaty,
military exercise has not intruded into that penumbra of error
engaged in combat alongside Filipino soldiers under the guise of
that would otherwise call for correction on our part. In other
an alleged training and assistance exercise? Contrary to what '"Reaffirming their faith in the purposes and principles of the
words, respondents in the case at bar have not committed grave
petitioners would have us do, we cannot take judicial notice of Charter of the United Nations and their desire to live in peace
abuse of discretion amounting to lack or excess of jurisdiction.
the events transpiring down south,18 as reported from the with all peoples and all Governments, and desiring to strengthen
saturation coverage of the media. As a rule, we do not take the fabric of peace in the Pacific Area,
"Recalling with mutual pride the historic relationship which "The Parties, through their Foreign Ministers or their deputies, "This Treaty shall be ratified by the United States of America and
brought their two peoples together in a common bond of will consult together from time to time regarding the the Republic of the Philippines in accordance with their respective
sympathy and mutual ideals to fight side-by-side against implementation of this Treaty and whenever in the opinion of constitutional processes and will come into force when
imperialist aggression during the last war, either of them the territorial integrity, political independence or instruments of ratification thereof have been exchanged by them
security of either of the Parties is threatened by external.' at Manila.
"Desiring to declare publicly and formally their sense of unity and
their common determination to defend themselves against I armed attack in the Pacific. "ARTICLE VIII.
external armed attack, so that no potential aggressor could be
under the illusion that either of them stands alone in the Pacific "ARTICLE IV. "This Treaty shall remain in force indefinitely. Either Party may
Area, terminate it one year after notice has been given to the other
"Each Party recognizes that an armed attack in the Pacific Area on party.
"Desiring further to strengthen their present efforts for collective either of the Parties would be dangerous to its own peace and
defense for the preservation of peace and security pending the safety and declares that it would act to meet the common "IN WITNESS WHEREOF the undersigned Plenipotentiaries have
development of a more comprehensive system of regional dangers in accordance with its constitutional processes. signed this Treaty.
security in the Pacific Area,
" Any such armed attack and all measures taken as a result "DONE in duplicate at Washington this thirtieth day of August,
"Agreeing that nothing in this present instrument shall be thereof shall be immediately reported to the Security Council of 1951."
considered or interpreted as in any way , or sense altering or the United Nations. Such measures shall be terminated when the
diminishing any existing agreements or understandings between Security Council has taken the measures necessary to restore and xxx xxx xxx xxx
the United States of America and the Republic of the Philippines, maintain international peace and security.
2
The day before, the first petition in connection with the joint
"Have agreed as follows: "ARTICLE V. military enterprise was filed --G.R. No.151433, entitled "In the
Matter of Declaration as Constitutional and Legal the 'Balikatan'
"ARTICLE I. "For the purpose of Article IV, an armed attack on either of the RP- US Military Exercises." Petitioner therein Atty. Eduardo B.
Parties is deemed to include an attack on the metropolitan Inlayo manifested that he would be perfectly "comfortable"
"The Parties undertake, as set forth in the Charter of the United territory of either of the Parties, or on the island territories under should the Court merely "note" his petition. We did not oblige
Nations, to settle any international disputes in which they may be its jurisdiction in the Pacific or on its armed forces, public vessels him; in a Resolution dated February 12, 2002, we dismissed his
involved by peaceful means in such a manner that international or aircraft used in the Pacific. petition on the grounds of insufficiency in form and substance
peace and security and justice are not endangered and to refrain and lack of jurisdiction. After extending a hearty Valentine's
in their international relations from the threat or use of force in "ARTICLE VI. greeting to the Court en banc, Atty. Inlayo promised to laminate
any manner inconsistent with the purpose of the United Nations. the aforesaid resolution as a testimonial of his "once upon a
"This Treaty does not affect and shall not be interpreted as time" participation in an issue of national consequence.
"ARTICLE II. affecting in any way the rights and obligations of the Parties
3
under the Charter of the United Nations or the responsibility of Annex 1 of the Comment.
"In order more effectively to achieve the objective of this Treaty, the United Nations for the maintenance of international peace
4
the Parties separately and jointly by self-help and mutual aid will and security. Annex 2 of the Comment. The Minutes state:
maintain and develop their individual and collective capacity to
resist armed attack. "ARTICLE VII. "Secretary Guingona and Assistant Secretary Kelly welcomed the
holding of Balikatan 02-1 exercise ('the Exercise") and the
"ARTICLE III. conclusion of the Terms of Reference for the Exercise. Assistant
Secretary Kelly thanked Secretary Guingona for Secretary engage in combat during the Exercise, except in accordance with then applied the exception in many other cases. [ citation
Guingona's personal approval of the Terms of Reference. their right to act in self-defense. omitted]

"Both Secretary Guingona and Assistant Secretary Kelly Both Secretary Guingona and Assistant Secretary Kelly reiterated This principle was reiterated in the subsequent cases of Gonzales
emphasized the importance of cooperating, within the bounds that, pursuant to Article II of the Visiting Forces Agreement, U.S. vs. COMELEC, Daza vs. Singson, and Basco vs. Phil. Amusement
provided for by their respective constitutions and laws, in the forces are bound to respect the laws of the Philippines during the and Gaming Corporation, where we emphatically held:
fight against international terrorism. Exercise.
'Considering however the importance to the public of the case at
"Both Secretary Guingona and Assistant Secretary Kelly expressed "Both Secretary Guingona and Assistant Secretary Kelly bar, and in keeping with the Court's duty, under the 1987
the belief that the Exercise shall not in any way contribute to any recognized that, pursuant to Article VI of the Visiting Forces Constitution, to detemine whether or not the other branches of
escalation of other conflicts in Mindanao, shall not adversely Agreement, both the U.S. and Philippine Governments waive any the governrnent have kept themselves within the limits of the
affect the progress of ongoing peace negotiations between the and all claims against the other for any deaths or injuries to their Constitution and the laws that that they have not abused the
Government of the Philippines and other parties, and shall not military and civilian personnel from the Exercise. discretion given to them, the Court has brushed aside
put at risk the friendly relations between the Philippines and its technicalities of procedure and has taken cognizance of this
neighbors as well as with other states. Secretary Guingona stated "Secretary Guingona and Assistant Secretary Kelly designated petition.xxx
that he had in mind the ongoing peace negotiations with the NDF Ambassador Minerva Falcon and Charge d' Affaires, a.i. Robert
and the MILF and he emphasized that it is important to make sure Fitts to initial these minutes. Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this
that the Exercsie shall not in any way hinder those negotiations. Court ruled that in cases of i transcendental importance, the
"Both Secretary Guingona and Assistant Secretary Kelly agreed to Court may relax the standing requirements and allow a suit to
"Both Secretary Guingona and Assistant Secretary Kelly stated consult from time to time on matters relating to the Exercise as prosper even , where there is no direct injury to the party
that they look forward to the realization of the nearly US$100 well as on other matters." claiming the right of judicial review.
million in security assistance for fiscal years 2001-2002 agreed
upon between H.E. President Gloria Macapagal-Arroyo and H.E. Notwithstanding, in view of the paramount importance and the Although courts generally avoid having to decide a constitutional
President George W. Bush last November 2001. constitutional significance of the issues raised in the petitions, question based on the doctrine of separation, of powers, which
this Court, in the exercise of its sound discretion, brushes aside enjoins upon the departments of the government a becoming
"Secretary Guingona stated that the Philippines welcomes the the procedural barrier and takes cognizance of the petitions, as respect for each others' acts, this Court nevertheless resolves to
assistance that the U.S. will be providing, saying that while we have done in the early Emergency Powers Cases, where we take cognizance of the instant petitions.6
Filipino soldier does not lack experience, courage and had occasion to rule:
determination, they could benefit from additional knowledge and 6 BAYAN, et. al. Y. Zamora, 342 SCRA 449 (2000).
updated military technologies. 5
338 SCRA 81, 100-101 (2000).
7
BAYAN, et. al. v. Zamora, et. al., 342 SCRA 449 (2000).
"Assistant Secretary Kelly said that he is glad the U.S. is able to 'x x x ordinary citizens and taxpayers were allowed to question
provide advice, assistance and training and reiterated the policy the constitutionality of several executive orders issued by 8
Article I [Definitions], VFA.
position expressed by H.E. President George W. Bush during his President Quirino although they were involving only an indirect
State of the Nation Address that U.S. forces are in the Philippines and general interest shared in common with the public. The Court 9
Article II [Respect for Law], VFA.
to advise, assist and train Philippine military forces. dismissed the objection that they were not proper parties and
ruled that 'transcendental importance to the public of these cases 10
l.M. SINCLA1R, THE VIENNA CONVENTION ON THE LAW OF
"Both Secretary Guingona and Assistant Secretary Kelly reiterated demands that they be settled promptly and definitely, brushing TREATIES 71-72 (1973).
that, as provided in the Terms of Reference, U.S. Forces shall not aside, if we must, technicalities of procedure. ' We have since
II 19
"No one is allowed to do indirectly what he is prohibited to do Sanchez v. National Labor Relations Commission, 312 SCRA 727 having been captured. He is believed either to be still in
directly." 12 Sec. . 12 SEC.21, Art. VII. ( 1999). Afghanistan or has crossed the border into Pakistan.

13 20
224 SCRA 576, 593 (1993). Hervas v. Court of Appeals, 319 SCRA 776 (1999); Valmonte v. In line with President Gloria Macapagal-Arroyo's pledge to render
Court of Appeals, 303 SCRA 278 ( 1999). 1âwphi1.nêt all-out aid to the US in its campaign against "global terrorism," an
14
Vienna Convention on the Law of Treaties, art. 26. arrangement for a. joint military exercises known as "RP-
21
Article VIII, section 1. US Balikatan 02-1 Exercises" was entered into between the US
15
Id, art. 27. However, this is without prejudice to the provisions and Philippine authorities, allegedly within the ambit of the
of art. 46 of the Convention, which provides: Visiting Forces Agreement (V FA) with the main objective of
EN BANC enhancing the operational capabilities of the countries in
combating terrorism. The US government has identified the Abu
"1. A State may not invoke the fact that its consent to be bound
Sayyaf Group (ASG) in the Philippines as a terrorist group forming
by a treaty has been expressed in violation of a provision of its G.R. No. 151445 April 11, 2002
part of a "terrorist underground" linked to the al-Qaeda network
internal law regarding competence to conclude treaties as
of Osama bin Laden.
invalidating its consent unless that violation was manifest and
concerned a rule of its internal law of fundamental importance.
Beginning January 21, 2002, American troops started arriving in
Mindanao as part of the total contingent force of 660 soldiers,
"2. A violation is manifest if it would be objectively evident to any ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,
160 to be stationed in Basilan, 200 to 250 in Zamboanga, and 250
State conducting itself in the manner in accordance with normal vs.
in the Air Force base in Mactan, Cebu.
practice and in good faith." HONORABLE EXECUTIVE SECRETARY as alter ego of HER
EXCELLENCY PRESIDENT GLORIA MACAPAGAL-ARROYO and
16 The salient features of the joint military exercises as embodied in
101 Phil. 1155, 1191 (1957). HONORABLE ANGELO REYES in his official capacity as Secretary
the Terms of Reference (TOR) are summarized as follows:
of National Defense, respondents.
17
9 SCRA 230,242 (1963). SANLAKAS and PARTIDO NG MANGGAGAWA, intervenors.
(a) The exercise shall be consistent with the Constitution and
18
other Philippine laws, particularly the RP-US Visiting Forces
Pertinent sections of Rule 129 provide: "SECTION I. Judicial
Agreement;
notice, when mandatory.-A court shall take judicial notice, DISSENTING OPINION
without the introduction of evidence, of the existence and
(b) No permanent US bases and support facilities will be
territorial extent of states, their political history , forms of KAPUNAN, J.:
established;
government and symbols of nationality, the law of nations, the
admiralty and maritime courts of the world and their seals, the On September 11, 2001, terrorists, with the use of hijacked
political constitution and history of the Philippines, the official (c) The exercise shall be implemented jointly by RP and US
commercial airplanes, attacked the World Trade Center Building
acts of the legislative, executive and judicial departments of the Exercise Co-Directors under the direction of the Chief of Staff of
in New York City and the Pentagon Building in Washington D.C.,
Philippines, the laws of nature, the measure of time, and the the AFP and in no instance will US Forces operate independently
U.S.A., killing thousands of people.
geographical divisions." Likewise, it is also provided in the next during field training exercises;
succeeding section: "SEC. 2. Judicial notice, when discretionary.- Following the attacks, the United States declared a "global war"
A court may take judicial notice of matters which are of public (d) It shall be conducted and completed within a period of not
against terrorism and started to bomb and attack Afghanistan to
knowledge, or are capable of unquestionable demonstration, or more than six months, with the projected participation of 660 US
topple the Taliban regime and capture Osama bin Laden, the
ought to be known to judges because of their judicial functions." personnel and 3,800 RP forces, and the Chief of Staff of the AFP
suspected mastermind of the September 11, 2001 attacks. With
shall direct the Exercise Co-Directors to wind up the Exercise and
the Northern Alliance mainly providing the ground forces, the
Taliban regime fell in a few months, without Osama bin Laden
other activities and the withdrawal of US forces within the six- NEITHER DOES THE VFA OF 1999 AUTHORIZED AMERICAN territorial integrity, political independence or security of either of
month period; SOLDIERS TO ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE the Parties is threatened by external armed attack in the Pacific.
TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON." [Emphasis supplied.]
(e) The exercise "is a mutual counter-terrorism advising, assisting
and training exercise" relative to Philippine efforts against the Sanlakas and Partido ng Manggagawa as intervenors seek the Supporting this conclusion is the third paragraph of the MDT
Abu Sayyaf Group and will be conducted on the Island of Basilan. same relief as petitioners, stressing that the Constitution preamble where the parties express their desire
Further advising, assisting and training exercises shall be prohibits the presence of foreign military troops or facilities in the
conducted in Malagutay and the Zamboanga area. Related country, except under a treaty duly concurred in by the Senate to declare publicly and formally their sense of unity and their
activities in Cebu will also be conducted in support of the and recognized as a treaty by the other state. common determination to defend themselves against external
Exercise; armed attack, so that no potential aggressor could be under the
The petition is impressed with merit. illusion that either of them stands alone in the Pacific area.
(f) Only 160 US troops organized in 12-man Special Forces Teams [Emphasis supplied.]
shall be deployed in Basilan, with the US Team remaining at the There is no treaty allowing
Company Tactical Headquarters where they can observe and US troops to engage in combat. There is no evidence that
assess the performance of the troops; and the ASG is connected with
The Constitution prohibits foreign military bases, troops or "global terrorism."
(g) US exercise participants shall not engage in combat, without facilities unless a treaty permits the same. Section 25, Article XVIII
prejudice to their right to self-defense. of the Constitution provides: There is no empirical basis for the allegation that the "terrorism"
which the ASG is accused of constitutes an "external armed
Petitioners now seek the issuance of a writ of After the expiration in 1991 of the Agreement between the attack." The ASG has committed mostly crimes of kidnapping for
prohibition/injunction to prevent US troops from participating in Republic of the Philippines and the United States of America ransom and murder - common crimes that are punishable under
areas of armed conflict on the ground that such is in gross concerning Military Bases, foreign military bases, troops, or the penal code but which, by themselves, hardly constitute
violation of the Constitution. They argue that: facilities shall not be allowed in the Philippines except under a "terrorism."
treaty duly concurred in by the Senate and, when the Congress so
I requires, ratified by a majority of the votes cast by the people in a Parenthetically, there is lack of agreement as to the precise
national referendum held for that purpose, and recognized as a definition of terrorism. Indeed, one man's terrorist may be
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL treaty by the other contracting State. another man's freedom fighter. The divergent interests of States
DEFENSE TREATY (MDT) IN 1951 TO PROVIDE MUTUAL MILITARY have caused contradicting definitions and conflicting perceptions
ASSISTANCE IN ACCORDANCE WITH THE CONSTITUTIONAL There is no treaty allowing foreign military troops to engage in of what constitutes "terrorist acts" that make it difficult for the
PROCESSES" OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED combat with internal elements. United Nations to reach a decision on the definition of terrorism.
ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD Because of this "definitional predicament," the power of
COUNTRY AGAINST ONE OF THEM. The Mutual Defense Treaty (MDT) between the Republic of the definition is easily exercised by a superpower which, by reason of
Philippines and the United States of America does not authorize its unchallenged hegemony, could draw lists of what it considers
BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE US military troops to engage the ASG in combat. The MDT terrorist organizations or states sponsoring terrorism based on
ABU SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL contemplates only an "external armed attack." Article III of the criteria determined by the hegemon's own strategic interests.1
ARMED FORCE THAT HAS SUBJECTED THE PHILIPPINES TO AN treaty cannot be more explicit:
ARMED EXTERNAL ATTACK TO WARRANT US MILITARY In any case, ties between the ASG and so-called international
ASSISTANCE UNDER THE MDT OF 1951. The Parties, through their Foreign Ministers or their deputies, will "terrorist" organizations have not been established.2Even
consult together from time to time regarding the implementation assuming that such ties do exist, it does not necessarily make the
II of this treaty and whenever in the opinion of either of them the
"attacks" by the ASG "external" as to fall within the ambit of the The VFA shall serve as the legal mechanism to promote defense These avowals of assistance, advice, and training, however, fly in
MDT. cooperation between the two countries, enhancing the the face of the presence of US troops in the heart of the ASG's
preparedness of the Armed Forces of the Philippines against stronghold. Such presence is an act of provocation that makes an
Balikatan exercises are external threats; and enabling the Philippines to bolster the armed confrontation between US soldiers and ASG members
not covered by VFA as stability of the Pacific Area in a shared effort with its neighbor inevitable.
US troops are not states.
allowed to engage in combat. The US troops in Basilan have been described as being "on a
The VFA's ambiguous reference to "activities"3 is not a loophole slippery slope between training and fighting."Their very
Neither is the present situation covered by the so-called Visiting that legitimizes the presence of US troops in Basilan. In the presence makes them a target for terrorist and for the local
Forces Agreement (VFA). The V FA was concluded after the treaty's preamble, the parties "reaffirm their obligations under Moslem populace, which has been bitterly anti-American since
removal of the US military bases, troops and facilities in the the Mutual Defense Treaty of August 30, 1951." As the preamble colonial times. Though they are called advisers, the Americans
aftermath of the termination of the treaty allowing the presence comprises part of a treaty's context for the purpose of win be going on risky missions deep into the jungle. A former
of American military bases in the Philippines. The VF A is nothing interpretation, the VFA must be read in light of the provisions of Green Beret who is an analyst of Washington's Center for
more than what its formal name suggests: an "Agreement the MDT. As stated earlier, the MDT contemplates only an Strategies and Budgetary Assessments notes that "when troops
between the Government of the Republic of the Philippines and external armed attack; consequently, the "activities" referred to go out on patrol, they come as close as they can to direct
the Government of the United States of America regarding in the V FA cannot thus be interpreted to include armed combat."4
the Treatment of United States Armed Forces Visiting the confrontation with or suppression of the ASG members who
Philippines. "The last paragraph of the V FA preamble also appear to be mere local bandits, mainly engaged in kidnapping "Advising" or "training" Filipino soldiers hardly describes the
"recogniz[es] the desirability of defining the treatmentof United for ransom and murder -even arson, extortion and illegal involvement of US troops (unaccompanied by Filipino
States personnel visiting the Republic of the Philippines." possession of firearms, all of which are common offenses under counterparts) on board combat helicopters which land on the
our criminal laws. These activities involve purely police matters battlegrounds to evacuate Filipino soldiers wounded while
The VFA was entered into to enable American troops to enter the and domestic law and order problems; they are hardly "external" fighting the ASG. For example, on April 5,2002, US troops on
country again after the removal of the American military bases so attacks within the contemplation of the MDT and the V FA. To board a Pave Hawk helicopter flew to the scene of a night battle
they can participate in military exercises under the auspices of construe the vagueness of the term "activities" in the V FA as on Basilan Island to evacuate a wounded Filipino soldier. This was
the Mutual Defense Treaty. It provided the legal framework authorizing American troops to confront the ASG in armed reportedly the third time in recent weeks that chopper-borne US
under which American soldiers will be treated while they remain conflict would, therefore, contravene both spirit and letter of the forces had evacuated Filipino soldiers fighting the ASG. 5
in the country. MDT.
Whatever euphemisms may be conjured to characterize
The military exercises contemplated in the VFA are those in Respondents maintain that the American troops are not here to American involvement, the RP-US Balikatan 02-1 Exercises are
accordance with the National Defense Plan (NDP) of the fight the ASG but merely to engage in "training exercises." To aimed at seeking out the ASG and exterminating it.
Philippines. The NDP was previously approved and adopted by allay fears that the American troops are here to engage the ASG
the Mutual Defense Board, jointly chaired by the Chief of Staff of in combat, the TOR professes that the present exercise "is a The prohibition contained in the TOR against US exercise
the Armed Forces of the Philippines and the Commander in the mutual counter-terrorism advising, assisting and training Exercise participants from engaging in combat but "without prejudice to
Pacific of the United States Armed Forces. relative to Philippine efforts against the ASG, and will be their right to self- defense" provides little consolation. Combat
conducted on the Island of Basilan." The TOR further provides muddles the distinction between aggression and self-defense. US
that the "exercise" shall involve the conduct of "mutual troops can always say they did not fire first and no one would
The NDP is directed against potential foreign aggressors, not
military assisting, advising and training of RP and US Forces with dare say otherwise. The ASG has been so demonized that no one
designed to deal with internal disorders. This was what the
the primary objective of enhancing the operational capabilities of cares how it is exorcised. Significantly, the TOR does not define
Senate understood when it ratified the VFA in Senate Resolution
both forces to combat terrorism." the parameters of "self-defense." Militarily, a pre-emptive strike
No. 18, which reads:
could be interpreted as an act of self -defense.
What I fear most is that the country would be dragged into a still scattered in the countryside, posing constant danger to life In his speech on the White House Laws on March 11, 2002,
more devastating and protracted conflict as a result of the and limb. President Bush exhorted:
continued presence of US military troops in Basilan. A single ASG
sniper's bullet felling an American soldier could be used as an US militarv presence is America encourages and expects governments everywhere to
excuse for massive retaliation by US ground and air forces to essentially indefinite help remove the terrorist parasites that threaten their own
attack and bomb out every suspected ASG lair, all in the name of and open-ended. countries and the peace of the world. x x x. We are helping right
"self -defense. now in the Philippines, where terrorist with links to Al Qaeda are
Already, there are indications that the US intends to reestablish trying to seize the southern part of the country to establish a
Apprehensions over possible catastrophic consequence of US a more enduring presence in the country. Defense Secretary military regime.
military involvement in our country are not without historical Angelo Reyes was quoted to have declared on March 20, 2002
basis. that 2,665 US soldiers will take part in the RP-US Balikatan 02-2 They are oppressing local peoples, and have kidnapped both
starting next month in Central Luzon and that 10 more military American and Filipino citizens."11
The US experience in Vietnam, for example, began as an exercises will be held this year.9 How many more war exercises
expression of support for the establishment of South Vietnam are needed for "training and advising" Filipino soldiers? What The Philippine Daily Inquirer in its March 17, 2002 issue carried
under Bao Dai's leadership in 1949 to. counteract the support conditions must be satisfied for the United States to consider the the following report:
given by communist China and the Soviet Union to North "war against terrorism" in Mindanao terminated? The endless
Vietnam. In 1950, the US began providing military assistance in frequency and successive repetition of the war exercises covering The United States wants to bring in more troops for the
fighting North Vietnam by sending military advisors as well as US the two largest islands of the country amount, in a real sense, to controversial Balikatan 02-1 training exercise aimed at wiping out
tanks, planes, artillery and other supplies. The US became more the permanent presence of foreign military troops here sans a the Abu Sayyaf bandits in Basilan.
involved in the Vietnam conflict when in 1961, it sent the first 400 treaty in blatant violation of the constitutional proscription.
Green Beret "Special Advisors" to South Vietnam to train the
The US military last week began calling the war-games "Operation
latter's soldiers in methods of counter-insurgency against the Viet US President George w. Bush in his January 30, 2002 speech Enduring Freedom-Philippines," giving credence to claims that the
Cong guerillas. It clarified that the American soldiers were not in declared: country has become, after Afghanistan, the second front of the
Vietnam to engage in combat.6
US-led global war on terrorism.
The men and women of our armed-forces have delivered a
However, due to the increased success of the Viet Cong guerillas, message to every enemy of the United States. You shall not Today's issue of April 1, 2002 reporting as its source New York
assisted by the Northern Vietnamese Army, the US eventually escape the justice of this nation. x x x. News Service, quoted a senior Bush administration official as
began to run covert operations using South Vietnamese
saying:
commandos in speed boats to harass radar sites along the Should any country be timid in the face of terror, if they do not
coastline of North Vietnam. In 1964, after an alleged torpedo act, America will. We are looking at prolonged training. x x x. It takes more to build
attack by North Vietnam of the American destroyers USS.
up capabilities than saying here are some night vision goggles.
Maddox and USS. C. Turner Joy in the Gulf of Tonkin, the US
President Arroyo, in a speech at the Regis Hotel in New York City
decided to retaliate by conducting bombing raids in North
on February 1, 2002, pledged her "full support" to US President The declarations of the two Presidents on the war against
Vietnam.7
George W. Bush in the fight against international terrorism. She terrorism and their avowal to secure the world against the
declared that "the Philippines will continue to be a partner of the terrorists would ineluctably suggest a long-drawn conflict without
The Vietnam War resulted in the death of two million Vietnamese United States in the war to end terrorism" and that "(t)he anti- a foreseeable end. Worse, it is not unlikely that this war could
and injuries to three million others. Twelve million Vietnamese terrorism partnership will continue after the whole world is expand and escalate to include as protagonists the Moro Islamic
became refugees and thousands of children became secure against the terrorist."10 Liberation Front and the Moro National Liberation Front and -
orphaned.8 Millions of acres of Vietnam's forests were defoliated
not improbably -the National People's Army, all lumped-up as
by a herbicide called Agent Orange, dropped from the air.
"terrorists" in a unilateral characterization.
Millions of mines and unexploded bombs and artillery shells are
No less than US Deputy Defense Secretary Paul Wolfowitz The issue of terrorism in the Philippines should be dealt with not the US can do more by supplying our soldiers with modern and
declared that the proposed $48-billion increase to the US defense from the perspective of Manila-Washington ties but from a high tech weaponry.
budget for 2003 is intended to sustain the war on terrorism,12 serious study of how terrorism figures in the minds of leaders and
including that fought in this country, thus: . armed men belonging to the large but deeply factionalized Prescinding from the foregoing disquisitions, it is totally
guerrilla movements in the country. Terrorism can never be erroneous to argue that petitioners do not have legal standing or
Deputy Defense Secretary Paul Wolfowitz on Wednesday said the dissociated from guerrilla warfare and the separatist movement that the issues raised by them are premature and not based on
Pentagon needs a big budget increase next year on terrorism, in Mindanao. From these movements would arise religious sufficient facts. The issues raised are of transcendental
which has expanded from Afghanistan to the Philippines and now extremists or millennarian groups. With the right resources and importance.18 The Balikatan exercises pose direct injury to some
appears to be moving to Georgia.13 the right agenda, these movements will continue to attract men- of the petitioners (intervenors) who live in the affected areas. The
skilled, intelligent, and experienced-who will come to grasp the presence of us troops in the combat zones "assisting" and
The Court can take judicial notice of the foregoing practical realities of waging a war with the minimum of resources "advising" our troops in combat against the ASG is a blatant
pronouncements as they are of public knowledge,14 having been but maximum public impact. violation of the Constitutional proscription against the stationing
widely circulated in all channels of the media. Neither have they of foreign troops to fight a local insurgency and puts the country
been denied. The government does not have to look for foreign connections- in peril of becoming a veritable killing field. If the time is not ripe
and be motivated by the desire to help foreign friends to address to challenge the continuing affront against the Constitution and
US military intervention a problem that has been and will be the making of its own home the safety of the people, when is the right time? When the
is not the solution to the grown armies.17 countryside has been devastated and numerous lives lost?
Mindanao problem.
The presence of US troops in Basilan, whether from the legal, I therefore vote to give due course to the petition.
Assuming that the ASG is a terrorist organization, U.S. military philosophical-or even from the practical perspective cannot be
intervention is not the solution to achieve peace. The annihilation justified, On the contrary, it is counterproductive. It serves to fuel
sgd. SANTIAGO M. KAPUNANAssociate Justice
of the rebel bandits would be a futile quest so long at the root an already volatile situation. US troops are likely less able, if not
causes of their criminality are not addressed. A study15 by the less willing, to distinguish between the innocent and the enemy.
United Nations Secretariat, however, acknowledges that The inevitable "collateral damage," the killing of women and
international terrorism springs from "misery, frustration, children, Muslims and Christians, the destruction of homes,
grievance and 'despair," elements which, many believe, are schools and hospitals would fan the flames of fanaticism and
present in Basilan. Two veteran Philippine journalists have transform mere rogues into martyrs.
described the province as Mindanao's "war laboratory," where
lawlessness, government neglect, religious strife, poverty, and The Filipino soldier has proven himself brave, courageous,
power struggle are rampant.16 fearless and tenacious in the field of battle as shown in Bataan
and Corregidor, in the four long years of guerilla warfare
If indeed acts of terrorism are cries of desperation, if terrorism is thereafter against the Japanese, and in the struggle for
but a symptom of the greater maladies of "misery, frustration, independence against Spain and the United States at the turn of
grievance and despair," then it cannot be remedied alone by the last century. The local army and police have successfully
battled in the past against Communist and other insurgents which Footnotes
ASG's physical extermination, which appears to be the object of
President Bush and President Macapagal- Arroyo's joint campaign were more organized and numerous, operating in larger parts of
1
the country and fighting for their political beliefs. If our troops In a Lecture delivered on March 12, 2002 as part of the Supreme
against global terrorism." Admittedly, the State has the right to
need training by us advisers or have to conduct joint exercises Court Centenary Lecture Series, Hans Koechler, Professor of
use force as a means of self-preservation. But perhaps we should
with US troops to improve their fighting capability, these could be Philosophy at the University of Innsbruck (Austria) and President
all consider that a military solution is but a first-aid measure,
more effectively achieved if done outside Basilan or away from of the International Progress Organization, speaking on "The
not the prescription to these diseases. It has been opined that:
the danger zones. Instead of bringing troops to the combat zones,
United Nations, The International Rule of Law and Terrorism, " against civilians, state functionaries or infrastructure or military fighter dichotomy. A "policy of double standards" on this vital
noted; installations, and those who believe in the concept of the issue of international affairs has been the unavoidable
legitimate use of force when resistance against foreign consequence.
In the actual unipolar context of international relations, the "fight occupation or against systematic oppression of ethnic and/or
against terrorism" has become one of the basic slogans when it religious groups within a state is concerned This "defmitional predicament" of an organization consisting of ~
comes to the justification of the use of force against certain states sovereign states -and not of peoples, in spite of the emphasis in
and against groups operating internationally. Lists of states The dilemma facing the international community can best be the I! Preamble to the United Nations Charter! -has become even
"sponsoring terrorism" and of terrorist organizations are set up illustrated by reference to the contradicting categorization of more serious ~ in the present global power constellation: ~
and constantly being updated according to criteria that are not organizations and movements such as Palestine Liberation superpower exercises the :1 decisive role in the Security Council,
always known to the public, but are clearly determined by Organization (PLO) -which is a terrorist group for Israel and a former great powers of the Cold ill i War era as well as medium
strategic interests. liberation movement for Arabs and Muslims -the Kashmiri powers are increasingly being marginalized; and the problem has
resistance groups -who are terrorists in the perception of India, become even more acute since the terrorist attacks of 11
The basic problem underlying all these military actions -or threats liberation fighters in that of Pakistan -the earlier Contras in September 2001 in the United States. "
of the use of force as the most recent by the United States Nicaragua -freedom fighters for the United States, terrorists for
against Iraq- consists in the absence of an agreed definition of the Socialist camp -or, most drastically, the Koechler adds, however, that this failure to distinguish between
terrorism. Afhani Mujahedeen (later to become the Taliban movement): terrorist acts and acts of national liberation did not prevent the
during the Cold War period they were a group of freedom fighters international community from arriving at an implicit or 11,
Remarkable confusion persists in regard to the legal for the West, nurtured by the United States, and a terrorist gang "operative" definition. For example, in Article of the International
categorization of acts of violence either by states, by armed for the Soviet Union. One could go on and on in enumerating Convention for Suppression of Terrorist Bombings, terrorist acts
groups such as liberation movements, or by individuals. examples of conflicting categorizations that cannot be reconciled are referred to as "criminal acts ..., in particular where they are
in any way -because of opposing political interests that are at the intended or calculated to provoke a state of terror in the general i
roots of those perceptions. ~ public or in a group of persons or particular persons" that are
The dilemma can be summarized in the saying '"One country's
terrorist is another country's freedom fighter." The apparent under no circumstances justifiable considerations of a political,
contradiction or lack of consistency in the use of the term How, then, can those contradicting definitions and conflicting philosophical, ideological, racial, ethnic, religious or ti ~ other
"'terrorism" may further be demonstrated by the historical fact perceptions and evaluations of one and the same group and its similar nature."
that leaders of national liberation movements such as Nelson actions be explained? In our analysis, the basic r.eason for these
Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed striking inconsistencies lies in the divergent interests of 2
The following excerpts from "Under the Crescent Moon:
Ben Bella in Algeria, to mention only a few, were originally states. Depending on whether a state is in the position of an Rebellion in Mindanao" by Marites Dafiguilan Vitug and Glenda
labeled as terrorists by those who controlled the territory at the occupying power or in that of a rival, or adversary, of an M. Gloria (Ateneo Center for Social Policy and Public Affairs and
time, but later became internationally respected statesmen. occupying power in a given territory, the defmition of terrorism Institute for Popular Democracy, 2000) demonstrate the
will "fluctuate" accordingly. A state may eventually see itself as obscurity of the ASG's raison d. etre:
protector of the rights of a certain ethnic group outside its
What, then, is the defining creterion for terrorist acts -
territory and will therefore speak of a "liberation struggle," not of ...for all the warring [the Abu Sayyaf] it has done supposedly in
the differentia specifica distinguishing those acts from eventually
"terrorism" when acts of violence by this group are concerned, the name of Islam, there is much confusion and mistrust
legitimate acts of national resistance or self-defense?
and vice-versa. 1âwphi1.nêt surrounding the Abu Sayyaf, whose leaders had flaunted their ties
Since the times of the Cold War the United Nations Organization with the police and the military. Even veterans of the Mindanao
The United Nations Organization has been unable to reach a war find it hard to identify the Abu Sayyaf's political direction-
has been trying in vain to reach a consensus on the basic issue of
decision on the definition of terrorism exactly because of these i. where it really wants to go, or what it wants to achieve as an
definition. The organization has intensified its efforts recently,
conflicting interests of sovereign states that determine in each organization. (At pp. 204205.)
but has been unable to bridge the gap between those who
and every ! instance how a particular armed movement (i.e. a
associate "'terrorism" with any violent act by non-state groups
non-state actor) is r labeled in regard to the terrorist-freedom
The military had long been divided on how to view the Abu States personnel" as "United States military and civilian personnel Fundamental Freedoms and Study of the Underlying Causes of
Sayyaf. The dominant view held the group as a genuine extremist temporarily in the Philippines in connection with activities Those Forms of Terrorism and Acts of Violence which Lie in
organization driven by an extreme view of Islam. But there are approved by the Philippine Government," does not limit the Misery, Frustration, Grievance and Despair and which Cause
military strategists who have downplayed the ideological scope of the "activities" that the Philippine Government may Some People to Sacrifice Human Lives, including Their Own, in an
component of Janjalani's cause, arguing that he merely wanted to "approve." Attempt to Effect Radical Changes." 2 November 1972, 27th
steal the thunder from the MNLF and the MILF - and in the Session. The pertinent portions of the study state:
process also hijack their financial connections to the Arab World. 4
McGeary, Next Stop Mindanao, Time Magazine, January 28,
(At p. 206.) 2002, p. 22. 13. Man is one of the few species that frequently uses violence
against its own kind. He has done so since the dawn of history. In
….[Basilan Bishop Romeo] [de] la Cruz said he didn't think the Abu 5
Philippine Daily Inquirer, April 6, 2002. the past, periods in which violence has been especially
Sayyaf was truly espousing fundamentalism. "Initially I thought conspicuous have been those of rapid social change. During the
this was a religious conflict because of the so-called resurgence of 6
See www.historyplace.com, Also Ambrose, Stephen, Rise to years of the existence of the United Nations, when in most parts
Islam. For awhile the Church even attributed the spate of Globalism: American Foreign Policy since 1938 (Fifth Rev, Ed.), of the world, and in both the
kidnappings in Basilan to Islamic fundamentalism. "Later on we
realized this was not the case. Islam was being used as a mere 7 developed and the developing countries, the patters of society
Id.
cover of these people. are changing with almost unprecedented speed, violence has
8 been frequent.
Microsoft Encyclopedia Encarta (2000).
Abdulgani "Gerry" Salappudin, governor of Basilan for 10 years,
shares this view. The Abu Sayyaf was being used to destroy the 9 14. The interlinked growth of technology and growth of
Philippine Daily Inquirer, March 21,2002.
image of Islam. He cited the fact that Janjalani's mother was a population have tended to create new hopes, expectations and
Christian. Was he out, therefore, the destroy Islam? "I am not needs in many social groups. These new attitudes mark a
10
saying that... It's just that he's not pure Muslim." Manila Bulletin, February 2, 2002.
departure from the resignation and passivity with which most
men in the past accepted the ills of life. The United Nations
11
Thus, how and why exactly the Abu Sayyaf was founded is a Philippine Star, March 13,2002. Charter is the voice of the aspirations of mankind when it
question for which neither the military nor Janjalani had a solid contemplates the establishment of a world in which aggression
12
answer. The group remains as nebulous as its beginning, and as "Democratic Senate Majority Leader Tom Daschle criticized the and the threat or use of force in international relations would be
shadowy as its charismatic founder. There is absolutely no doubt US administration's war terrorism yesterday, charging that it has effectively outlawed, friendly relations would exist among nations
that it has been infiltrated by the military. What is uncertain is undergone an expansion without at least a clear direction." on the basis of respect for the principles of equal rights and self-
whether or not Janjalani, who was admired by many in the determination of peoples, international disputes would be settled
Muslim community, formed the Abu Sayyafprecisely to work for "How long can we stand this kind of pressure on our treasury?.. justly be peaceful, and international co-operation would solve
the military or if he had simply lost control over his own men. (At We seem to be good at developing enhance strategies, not so international economic and social problems and promote respect
pp. 210-211.) good at developing exit strategies, he charged." (The Philippine for human rights and fundamental freedoms for all.
Star, March 2, 2002).
3
Article III (1) on Entry and Departure, for example, imposes upon 15. The period of the existence of the United Nations, however,
the Philippine Government the duty to "facilitate the admission 13 has shown very incomplete and uneven progress towards these
The Philippine Star, March 2, 2002.
of United States personnel and their departure from the goals. While major wars involving the great Power have not
Philippines in connection with activities covered by this 14
Sec. 1, Rule 129, RULES OF COURT. occurred, force has often been resorted to, and has inflicted
agreement." Article VI (1) also mentions "claims... from activities suffering and exile upon peoples. While progress has been made
to which this agreement applies." The same reference to 15
Entitled "Measures to Prevent International Terrorism which against colonialism and racism, those evils have not yet been
"activities to which this agreement applies" is found in Article VII Endangers or Takes Innocent Human Lives or Jeopardizes completely eliminated. Even where political independence has
on Importation and Exportation. Article I, in defining "United been established, in many cases much remains to be done in
assisting the populations to attain the minimum level necessary international character. A terrorist act focuses world attention Indeed, a man is inspired by his belief but is constrained by his
for decent conditions of life. Few advances have been made upon the terrorist and upon any cause he may claim to represent. environment. And Basilan, where Janjalani grew up, is a place
towards the peaceful settlement of some major international In these circumstances, some such acts - which, as has already where the laws set by men are flouted daily. It is a place where
disputes, which are too often left to fester and poison been said, cannot possibly by themselves effect radical social people of weak resolve could give in to the challenges posed by
international relations. Among groups where economic and social changes -are really acts of communication. They are intended to power, either the lack or possession of it. It certainly is not a
progress has been relatively slow, conditions have been show the world that the determination and devotion of the place conducive for reflection or reinforcing pure religious
unfavourable to the exercise of and the respect for human rights terrorists are sufficient to compensate in the long run for their thoughts.
and fundamental freedom. apparent inferiority in strength; that their cause is more holy to
them than life itself, must be taken seriously, and is worthy of Mindanao's best war laboratory, Basilan is one of the Country's
16. The lack of slowness of advance towards these goals has support; and that neither their foe nor the world at-Iarge is able poorest provinces where all sorts of armed groups dominate a
contributed toward the "misery, frustration, grievance and to prevent their success in their purpose, or ensure punishment populace long neglected by government. Local rulers compete for
despair" which, while not themselves causes of terrorism, are of their deeds and those of their associates. legitimacy with armed rebel groups, bandits, Muslim preachers,
psychological conditions or states of being which sometimes lead, Catholic volunteers, loggers legal and illegal, the Marines, the
directly or indirectly, to the commission of acts of violence. While 18. Other such acts, however, seem to be more the result of blind Army. In this sense, the Abu Sayyaf was ripe for growth. Modern
in the United Nations context it is perhaps appropriate to give fanaticism, or of the adoption of an extremist ideology which history has proven that whenever the legitimacy of the state
special attention to the international factor that contribute to subordinates morality and all other human values to a single aim. suffers and the economy goes down, other forces come to fore as
violence, there are also many situations in individual nations In either case, the result is the same; modern life and modern alternative. Janjalani had offered solace to those who bothered to
which may give rise to the grievance of a particular group or weapons bring more and more strangers and foreigners within listen to him. The reality of Basilan, after all, is its deadly
person, leading to acts having international repercussions. Purely the reach of the terrorist, and he uses them as instruments for his environment: grinding poverty, the absence of the rule of law,
personal circumstances can also often have the same result. purpose. As violence breeds violence, so terrorism begets and the proliferation of arms and of men who thrive on them. It is
There are also cases in which there is no genuine grievance at all, counter-terrorism, which in turn leads to more terrorism in an no coincidence that a group with such amorphous beginnings as
and a violent crime affecting more than one country seems to ever-increasing spiral, the Abu Sayyaf was established in a province that remains poor
have been committed from mere cupidity, or a desire to escape despite its fertile, lushly forested land and its proximity to
criminal prosecution. The General Assembly, however, in xxx Zamboanga City. It didn't matter that Janjalani went to the
stressing "misery, frustration, grievance and despair, seems to Catholic-run Clarest school. Janjalani, or any local leader for that
have singled out for special attention those situations which have 20. It thus appears that the "misery, frustration, grievance and matter, would have found it difficult to detach himself from this
the common characteristic of calling for redress. despair" which lead to terrorism have many roots in international environment.
and national political, economic and social situations affecting the
17. Why is it that violence resulting from these circumstances terrorist, as well as in his personal circumstances. The precise Former MNLF members in Basilan who have known little more
takes with increasing frequency the form of international chain of causation of particular acts cannot be traced with than how to was kidnapping, and it gave Abu Sayaff away. No
terrorism, threatening, endangering or killing innocent victims? scientific exactitude. Nevertheless, the General Assembly may group espousing a true Islamic state would have resorted to
As the peoples of the world grow more interdependent the wish to identify types of situations which, if a remedy could be kidnapping in such a random, blatant style as the Abu Sayyaf did
solution of many problems no longer hangs on any local ruler or found to bring them more into accord with justice, will cease to in its heyday.
government, but on actions and decisions taken thousands of contribute to the spreading terrorism which has shocked the
miles away. Men think their ills have been produced by some vast world. It also didn't help that the governrnent and the media unfairly
impersonal force, which is deaf to their pleas for justice or lumped Islamic fundamentalism and terrorism together because
impotent to find solutions, rather than by other men, striving for 16
Dañguilan Vitug and Gloria (Under the Crescent Moon: Rebellion the Abu Sayyaf, which espouses the former, has been suing the
similar although opposed ends and bound to them by the claims in Mindanao, supra.) write: latter as a means to fight for its cause. (At 206-207.)
of a common humanity. Modem communications and the growth
of the public information media have transformed local incidents 17
DANGUILAN VITUG AND GLORIA, at 244-245.
into world events, especially when the incidents have an
18
Bayan vs. Zamora, 342 SCRA 449 (2002). 3. The Petition is premature because the alleged violation of the admitted that U.S. 'advisers' will accompany Filipino soldiers on
Constitution is merely speculative, not actual or imminent. patrol in the combat zones.

4. Though entitled "Certiorari and Prohibition," the Petition is Also, a base of operation will be in the Sampinit complex which is
really one for declaratory relief which merely seeks an advice or in the heartland of the Abu Sayyaf's 'territorial domain' in Basilan
EN BANC opinion, not a decision. The Supreme Court has no jurisdiction to island. A shooting war, not just an exercise, is unavoidable."
issue opinions or advices.
G.R. No. 151445 APRIL 11, 2002 That a "shooting war is unavoidable" is conjectural; at best, a
Ordinarily, the above reasons would indeed be sufficient to cause conclusion that is not borne by solid factual moorings. Cases
ARTHUR D. LIM, ET AL., petitioners, the dismissal of a petition. However, because of the cannot be decided on mere speculation or prophecy .The Petition
vs. "transcendental importance" of the main question raised - the claims that while the us troops are "disguised" as "advisers" or
HONORABLE EXECUTIVE SECRETARY, ETC., ET AL., respondents. constitutionality of the Balikatan exercise - the Court, I believe, "trainors" or "chaperons," they are actually combatants engaged
SANLAKAS, ET AL., intervenors. could have exempted this case from these procedural in an offensive war against local insurgents. Again, there is no
requirements and tackled the case on the merits, if only to put to solid factual basis for this statement. It may or may not be true.
rest the legality of this major event of public interest ill our The Petition also alleges, again without firm factual support, that
SEPARATE OPINION*
country and even ill the world. I, for one, would have voted to set the American forces will stay here indefinitely "for a year or even
aside these legalistic obstacles, had the Petition presented enough more depending on the need of the AFP for them."
PANGANIBAN, J:
factual moorings upon which to base an intelligent discussion and
disposition of the legal issues. On the other hand, the OSG assures that petitioners'
Through their "Petition for Certiorari and, Prohibition," Arthur D.
"apprehensions are belied" by the Terms of Reference (TOR)
Lim and Paulino R. Ersanda -- joined by Intervenors Sanlakas and
For instance, this Court cannot be called upon to decide the approved by both the Philippines and the United States, which
Partido ng Manggagawa -- plead for the issuance of an order
factual issues of whether the US forces are actually engaging the "expressly limit. the conduct and completion of the exercise
"restraining the respondents from proceeding or continuing and
Abu Sayyaf Group ill combat and whether they will stay within a period not exceeding six " (6) months and prohibits the
completing the so-called 'Balikatan 02-1'" on the ground that the
ill our country permanently. This Court has no authority to American participants from engaging in combat, without
exercise is not sanctioned by any treaty and is, therefore,
conduct a trial, which can establish these factual antecedents. prejudice to their right to self-defense."
allegedly unconstitutional.
Knowing what these antecedents are is necessary to determine
whether the Balikatan violates the Constitution or the Mutual I stress that cases cannot be decided by this Court on the basis of
Agreeing with the Comment of the Office of the Solicitor General Defense Treaty (MDT) of 1951 or the Visiting Forces Agreement speculative or hypothetical assumptions like "If the facts were
(OSG), the ponencia of Mr. Justice Sabino R. de Leon Jr. dismisses (VFA) of 1999. Verily, the Petition has not even alleged that the these, then our decision would be this; on the other hand, if the
the Petition essentially on these procedural grounds: American troops have indeed been unconstitutionally engaged ill facts change, then our ruling would be modified as follows. "
actual offensive combat. The contention that they would Decisions of this Court especially in certiorari and prohibition
1. As taxpayers, petitioners do not have legal standing or locus necessarily and surely violate the Constitution by participating ill cases are issued only if the facts are clear and definite. As a rule,
standi, because Balikatan 02-1 "does not involve the exercise by the joint exercise in Basilan is merely speculative. Petitioners courts may not consider or judge facts or matters unless they are
Congress of its taxing or spending power." aver: alleged in the pleadings and proven by the parties. Our duty is to
apply the law to facts that are not in dispute.
2. Certiorari and prohibition are improper remedies, because "American soldiers with high-tech weaponry, disguised as trainers
petitioners have not alleged sufficient facts upon which grave or advisers to Filipino troops, will go to the war zones of Basilan. In the absence of firm factual findings that the Americans "will
abuse of discretion or excess/lack of jurisdiction could be argued Hence, while dubbed as a military exercise, it is in reality a stay indefinitely" in our country or "are engaged in actual
from. continuing combat operation by the AFP against the Abu Sayyaf offensive combat with local insurgents" as alleged by petitioners,
to be participated in this time by U.S. troops. It has been respondent Philippine officials who are hosting the Balikatan
exercise cannot possibly be imputed with grave abuse of
sgd. ARTEMIO V. PANGANIBAN
discretion - an indispensable element of certiorari. 1âwphi1.nêt
Associate Justice

True, there are some questions that may genuinely be raised in

regard to the Balikatan 02-1 vis-a-vis our Constitution, the MDT
and the VFA, like the following:
Footnotes
(1) Is the Abu Sayyaf Group composed of "international terrorists"
whose acts and practices violate the United Nations Charter to *At petitioners' insistent request, the Court had to speed up the
such an extent as to pose a threat to international peace and deliberation and disposition of this case, as the Balikatan may
security? soon be completed and the Petition rendered moot. Hence, I
wrote this Opinion hurriedly without the benefit of the usual
(2) Is there an "external armed attack" against the Philippines citations of legal authorities.
sufficient in force and magnitude as to justify an invocation of the
MDT?

(3) Are the size, the kind, and the location of the Balikatan
deployment justified by the nature, the scope, the duration, and
the kind of "activities" allowed under the VFA?

(4) Is it true that the real American objective is the rescue of ASG
hostages Martin and Gracia Burnham, who are both American
citizens? If so, is such rescue legally justified?

(5) Does the Balikatan pose a "political question " which the
Supreme Court has no authority to rule upon, and which may only
be decided by our people directly or through their I elected
representatives?

Unfortunately, the foregoing and other similar nagging questions

cannot be judicially taken up and answered until a
petition, sufficient in form and substance, is properly presented to
the appropriate court.

FOR THE FOREGOING REASONS, I vote to DISMISS the present

Petition.