Lim V Exec Sec
Lim V Exec Sec
______________
* EN BANC.
740
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
Reference rightly fall within the context of the VFA. After studied
reflection, it appeared farfetched that the ambiguity surrounding
the meaning of the word „activities‰ arose from accident. In our
view, it was deliberately made that way to give both parties a
certain leeway in negotiation. In this manner, visiting US forces
may sojourn in Philippine territory for purposes other than military.
As conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nationÊs marine
resources, sea search-and-rescue operations to assist vessels in
distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and
the like.
Same; Same; Same; The VFA gives legitimacy to the current
Balikatan exercises.·Under these auspices, the VFA gives
legitimacy to the current Balikatan exercises. It is only logical to
assume that „Balikatan 02-1,‰ a „mutual anti-terrorism advising,
assisting and training exercise,‰ falls under the umbrella of
sanctioned or allowable activities in the context of the agreement.
Both the history and intent of the Mutual Defense Treaty and the
VFA support the conclusion that combat-related activities·as
opposed to combat itself·such as the one subject of the instant
petition, are indeed authorized.
Same; Same; Same; A party to a treaty is not allowed to „invoke
the provisions of its internal law as justification for its failure to
perform a treaty.‰·From the perspective of public international
law, a treaty is favored over municipal law pursuant to the principle
of pacta sunt servanda. Hence, „[e]very treaty in force is binding
upon the parties to it and must be performed by them in good faith.‰
Further, a party to a treaty is not allowed to „invoke the provisions
of its internal law as justification for its failure to perform a treaty.‰
Remedial Law; Certiorari; The present subject matter is not a fit
topic for a special civil action for certiorari.·It is all too apparent
that the determination thereof involves basically a question of fact.
On this point, we must concur with 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 a remedy. The sole object of the writ is
to correct errors of jurisdiction or grave abuse of discretion. The
phrase „grave abuse of discretion‰ has a precise meaning in law,
denoting abuse of discretion „too patent and gross as to amount to
an evasion of a positive duty, or a virtual refusal to perform the
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
742
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
743
______________
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
„ARTICLE I.
„The Parties undertake, as set forth in the Charter of the United Nations, to
settle any international disputes in which they may be involved by peaceful
means in such a manner that international peace and security and justice are
not endangered and to refrain in their international relations from the threat
or use of force in any manner inconsistent with the purpose of the United
Nations.
„ARTICLE II.
ÂIn order more effectively to achieve the objective of this Treaty, the Parties
separately and jointly by self-help and mutual aid will maintain and develop
their individual and collective capacity to resist armed attack.
„ARTICLE III.
„The Parties, through their Foreign Ministers or their deputies, will consult
together from time to time regarding the implementation of this Treaty and
whenever in the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened by external
armed attack in the Pacific.
„ARTICLE IV.
„Each Party recognizes that an armed attack in the Pacific Area on either of
the Parties would be dangerous to its own peace and safety and
744
______________
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
declares that it would act to meet the common dangers in accordance withits
constitutional processes.
„Any such armed attack and all measures taken as a result thereof shall be
immediately reported to the Security Council of the United Nations. Such
measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and security.
„ARTICLE V.
„For the purpose of Article IV, an armed attack on either of the Parties is
deemed to include an attack on the metropolitan territory of either of the
Parties, or on the island territories under its jurisdiction in the Pacific or on its
armed forces, public vessels or aircraft used in the Pacific.
„ARTICLE VI.
„This Treaty does not affect and shall not be interpreted as affecting in any
way the rights and obligations of the Parties under the Charter of the United
Nations or the responsibility of the United Nations for the maintenance of
international peace and security.
„ARTICLE VII.
„This Treaty shall be ratified by the United States of America and the
Republic of the Philippines in accordance with their respective constitutional
processes and will come into force when instruments of ratification thereof
have been exchanged by them at Manila.
„ARTICLE VIII.
„This Treaty shall remain in force indefinitely. Either Party may terminate
it one year after notice has been given to the other party.
„IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed
this Treaty.
„DONE in duplicate at Washington this thirtieth day of August, 1951.‰
xxx xxx xxx xxx
745
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
2 The day before, the first petition in connection with the joint military
enterprise was filed·G.R. No. 151433, entitled „In the Matter of
Declaration as Constitutional and Legal the ÂBalikatanÊ RP-US Military
Exercises.‰ Petitioner therein Atty. Eduardo B. Inlayo manifested that he
would be perfectly „comfortable‰ should the Court merely „note‰ his
petition. We did not oblige him; in a Resolution dated February 12, 2002,
we dismissed his petition on the grounds of insufficiency in form and
substance and lack of jurisdiction. After extending a hearty ValentineÊs
greeting to the Court en banc, Atty. Inlayo promised to laminate the
aforesaid resolution as a testimonial of his „once upon a time‰
participation in an issue of national consequence.
746
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
I. POLICY LEVEL
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
747
1. TRAINING
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
3. PUBLIC AFFAIRS
748
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
749
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
Philippine Governments waive any and all claims against the other for any
deaths or injuries to their military and civilian personnel from the Exercise.
„Secretary Guingona and Assistant Secretary Kelly designated Ambassador
Minerva Falcon and Charge dÊ Affaires, a.i. Robert Fitts to initial these
minutes.
„Both Secretary Guingona and Assistant Secretary Kelly agreed to consult
from time to time on matters relating to the Exercise as well as on other
matters.‰
750
II
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
751
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
ÂConsidering however the importance to the public of the case at bar, and
in keeping with the CourtÊs duty, under the 1987 Constitution, to
determine whether or not the other branches of the government have
kept themselves within the limits of the Constitution and the laws that
that they have not abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has taken cognizance of
this petition. x x xÊ
______________
752
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
753
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
8
the approval of the Philippine government. The sole
encumbrance placed on its definition is couched in the
negative, in that United States personnel must „abstain
from any activity inconsistent with the spirit of this9
agreement, and in particular, from any political activity.‰
All other activities, in other words, are fair game. We are
not left completely unaided, however. The Vienna
Convention on the Law of Treaties, which contains provisos
governing interpretations of international agreements,
state:
Article 31
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______________
754
Article 32
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
755
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______________
756
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
Article 2
757
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
Sec. 25. After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops or
facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a
treaty by the other contracting state.
x x x Withal, the fact that international law has been made part of
the law of the land does not by any means imply the primacy of
international law over national law in the municipal sphere. Under
the doctrine of incorporation as applied in most countries, rules of
international law are given a standing equal, not superior, to
national legislation.
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
758
______________
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
„1. A State may not invoke the fact that its consent to be bound by a
treaty has been expressed in violation of a provision of its
internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and
concerned a rule of its internal law of fundamental importance.
„2. A violation is manifest if it would be objectively evident to any
State conducting itself in the manner in accordance with normal
practice and in good faith.‰
759
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
760
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
761
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
SO ORDERED.
DISSENTING OPINION
KAPUNAN, J.:
762
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763
II
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764
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765
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
for Israel
766
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
Council, former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute
since the terrorist attacks of 11 September 2001 in the United States.
767
ing that such ties do exist, it does not necessarily make the
„attacks‰ by the ASG „external‰ as to fall within the ambit
of the MDT.
______________
. . . for all the warring [the Abu Sayyaf] it has done supposedly in the name of
Islam, there is much confusion and mistrust surrounding the Abu Sayyaf,
whose leaders had flaunted their ties with the police and the military. Even
veterans of the Mindanao war find it hard to identify the Abu Sayyaf Ês political
direction·where it really wants to go, or what it wants to achieve as an
organization. (At pp. 204-205.)
The military had long been divided on how to view the Abu Sayyaf. The
dominant view held the group as a genuine extremist organization driven by an
extreme view of Islam. But there are military strategists who have downplayed
the ideological component of JanjalaniÊs cause, arguing that he merely wanted
to steal the thunder from the MNLF and the MILF·and in the process also
hijack their financial connections to the Arab World. (At p. 206.)
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
. . . . [Basilan Bishop Romeo] [de] la Cruz said he didnÊt think the Abu
Sayyaf was truly espousing fundamentalism. „Initially I thought this was a
religious conflict because of the so-called resurgence of Islam. For a while the
Church even attributed the spate of kidnappings in Basilan to Islamic
fundamentalism. „Later on we realized this was not the case. Islam was being
used as a mere cover of these people.
Abdulgani „Gerry‰ Salappudin, governor of Basilan for 10 years, shares this
view. The Abu Sayyaf was being used to destroy the image of Islam. He cited
the fact that JanjalaniÊs mother was a Christian. Was he out, therefore, the
destroy Islam? „I am not saying that . . . ItÊs just that heÊs not pure Muslim.‰
Thus, how and why exactly the Abu Sayyaf was founded is a question for
which neither the military nor Janjalani had a solid answer. The group
remains as nebulous as its beginning, and as shadowy as its charismatic
founder. There is absolutely no doubt that it has been infiltrated by the
military. What is uncertain is whether or not Janjalani, who was admired by
many in the Muslim community, formed the Abu Sayyaf precisely to work for
the military or if he had simply lost control over his own men. (At pp. 210-211.)
768
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
3 Article III (1) on Entry and Departure, for example, imposes upon
the Philippine Government the duty to „facilitate the admission of
United States personnel and their departure from the Philippines in
connection with activities covered by this agreement.‰ Article VI (1) also
mentions „claims . . . from activities to which this agreement applies.‰
The same reference to „activities to which this agreement applies‰ is
found in Article VII on Importation and Exportation. Article I, in
defining „United States personnel‰ as „United States military and
civilian personnel temporarily in the Philippines in connection with
activities approved by the Philippine Government,‰ does not limit the
scope of the „activities‰ that the Philippine Government may „approve.‰
770
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
7 Id.
772
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774
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
Mindanao problem.
Assuming that the ASG is a terrorist organization, U.S.
military intervention is not the solution to achieve peace.
The annihilation of the rebel bandits would be a futile
quest so long at the15 root causes of their criminality are not
addressed. A study by the
______________
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.
775
______________
In the past, periods in which violence has been especially conspicuous have
been those of rapid social change. During the years of the existence of the
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
United Nations, when in most parts of the world, and in both the developed
and the developing countries, the patters of society are changing with almost
unprecedented speed, violence has been frequent.
14. The interlinked growth of technology and growth of population have
tended to create new hopes, expectations and needs in many social groups.
These new attitudes mark a departure from the resignation and passivity with
which most men in the past accepted the ills of life. The United Nations
Charter is the voice of the aspirations of mankind when it contemplates the
establishment of a world in which aggression and the threat or use of force in
international relations would be effectively outlawed, friendly relations would
exist among nations on the basis of respect for the principles of equal rights
and self-determination of peoples, international disputes would be settled
justly be peaceful, and international cooperation would solve international
economic and social problems and promote respect for human rights and
fundamental freedoms for all.
15. The period of the existence of the United Nations, however, has shown
very incomplete and uneven progress towards these goals. While major wars
involving the great Power have not occurred, force has often been resorted to,
and has inflicted suffering and exile upon peoples. While progress has been
made against colonialism and racism, those evils have not yet been completely
eliminated. Even where political independence has been established, in many
cases much remains to be done in assisting the populations to attain the
minimum level necessary for decent conditions of life. Few advances have been
made towards the peaceful settlement of some major international disputes,
which are too often left to fester and poison international relations. Among
groups where economic and social progress has been relatively slow, conditions
have been unfavourable to the exercise of and the respect for human rights and
fundamental freedom.
16. The lack of slowness of advance towards these goals has contributed
toward the „misery, frustration, grievance and despair‰ which, while not
themselves causes of terrorism, are psychological conditions or states of being
which sometimes lead, directly or indi-
776
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777
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______________
either case, the result is the same; modern life and modern weapons bring more
and more strangers and foreigners within the reach of the terrorist, and he
uses them as instruments for his purpose. As violence breeds violence, so
terrorism begets counter-terrorism, which in turn leads to more terrorism in an
ever-increasing spiral.
xxx
20. It thus appears that the „misery, frustration, grievance and despair‰
which lead to terrorism have many roots in international and national political,
economic and social situations affecting the terrorist, as well as in his personal
circumstances. The precise chain of causation of particular acts cannot be
traced with scientific exactitude. Nevertheless, the General Assembly may
wish to identify types of situations which, if a remedy could be found to bring
them more into accord with justice, will cease to contribute to the spreading
terrorism which has shocked the world.
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
forested land and its proximity to Zamboanga City. It didnÊt matter that
Janjalani went to the Catholic-run Clarest school. Janjalani, or any local
778
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______________
leader for that matter, would have found it difficult to detach himself from this
environment.
Former MNLF members in Basilan who have known little more than how to
fire a gun have resorted to easy ways of earning a living. One of these means
was kidnapping, and it gave Abu Sayaff away. No group espousing a true
Islamic state would have resorted to kidnapping in such a random, blatant
style as the Abu Sayyaf did in its heyday.
It also didnÊt help that the government and the media unfairly lumped
Islamic fundamentalism and terrorism together because the Abu Sayyaf, which
espouses the former, has been suing the latter as a means to fight for its cause.
(At 206-207.)
779
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
780
**
SEPARATE OPINION
PANGANIBAN, J.:
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
______________
781
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
782
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
783
··o0o··
784
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SUPREME COURT REPORTS ANNOTATED VOLUME 380 2/9/18, 11:45 PM
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