BARROSA, Paul John F.

PIL-CASE #1
Block A, Public International Law

Bayan v Executive Secretary Ronaldo Zamora

G.R. No. 138570. October 10, 2000]
Facts:
United States of America and the Philippines discussed about the Visiting
Forces Agreement (VFA), which provides for the mechanism for regulating
the circumstances and conditions under which US Armed Forces and defense
personnel may be present in the Philippines. President Fidel V. Ramos
approved the VFA, which was respectively signed by public respondent
Secretary Siazon and Unites States Ambassador Thomas Hubbard on
February 10, 1998.
On October 5, 1998, the new president, Joseph E. Estrada, through the
countrys Secretary of Foreign Affairs, ratified the VFA. It was then officially
transmitted to the Senate for concurrence, pursuant to Section 21, Article VII
of the 1987 Constitution. The Senate thereafter gave its concurrence to the
VFA by a two-thirds (2/3) vote of its members.
On June 1, 1999, the VFA officially entered into force after an Exchange of
Notes between the Philippines Foreign Affairs Secretary and the United
States Ambassador.
Petitioners question the validity of the VFA on the ground that Section 25,
Article XVIII of the Constitution and not Section 21, Article VII which applies
on treaties that involve presence of foreign military troops in the country. It
is also argued that the President acted with grave abuse of discretion when it
ratified the VFA, a treaty, as the power to ratify is the same is lodged with
the Senate and not with the chief executive.
For respondents, only Section 21, Article VII of the Constitution applies as
the VFA is a mere transient agreement and is just about troops, not bases.
Issues:
1. WON Section 25, Article XVIII of the Constitution and not Section 21, Article
VII is the applicable provision on treaties that involve presence of foreign
military troops in the country?
2. WON the power to ratify treaties, like the VFA, is lodged with the Senate?
Ruling:
1. Section 25, Article XVIII and Section 21, Article VII of the Constitution are
both applicable on a treaty, like the VFA, which involves the presence of
foreign military troops in the country.
Section 21, Article VII deals with treatise or international agreements in
general, in which case, the concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the same valid and binding on
the part of the Philippines. However, Section 25, Article XVIII is a special
provision that applies to treaties which involve the presence of foreign
military bases, troops or facilities in the Philippines. Herein, concurrence of
Senate, in the number so provided Section 21, Article VII, is only one of the
requisites to comply with the constitutional requirements and to make the
agreement binding on the Philippines.
A special provision prevails over a general one. Lex specialis derogat
generali. Where there is in the same statute a particular enactment and a
general one which, in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be operative, and the
general enactment must be taken to affect only such cases within its general
language which are not within the provision of the particular enactment.
It cannot be said that Section 25, Article XVIII is inapplicable to transient
agreements. The Constitution makes no distinction between transient and
BARROSA, Paul John F. PIL-CASE #1
Block A, Public International Law

permanent. When no distinction is made by law, the Court should not

distinguish. Ubi lex non distinguit nec nos distinguire debemos.
Also, it cannot be contended that Section 25, Article XVIII is not controlling
since no foreign military bases, but merely foreign troops and facilities, are
involved in the VFA. Said constitutional provision covers foreign military
bases, troops, or facilities. It provision contemplates three different
situations - a military treaty the subject of which could be either (a) foreign
bases, (b) foreign troops, or (c) foreign facilities.
Given that Section 25, Article XVIII, such provision disallows foreign military
bases, troops, or facilities in the country, unless the following conditions are
sufficiently met: (a) it must be under a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so required by congress, ratified by a
majority of the votes cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state. All the aforesaid
elements were met here.
On the first two requisites, the concurrence of 2/3 of the member of Senate
is sufficient. There is no need for ratification by a majority of the votes cast
in a national referendum as Congress did not require it.
However, on the third element, petitioners argue that the phrase recognized
as a treaty means that the VFA should have the advice and consent of the
United States Senate pursuant to its own constitutional process, and that it
should not be considered merely an executive agreement by the United
States. Contrary to petitioners contention, however, said phrase only means
that the other contracting party accepts or acknowledges the agreement as a
treaty. Words used in the Constitution are to be given their ordinary meaning
except where technical terms are employed, in which case the significance
thus attached to them prevails.
Moreover, it is inconsequential whether the United States treats the VFA only
as an executive agreement because, under international law, an executive
agreement is as binding as a treaty. In fact, as long as the VFA possesses the
elements of an agreement under international law, the said agreement is to
be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
international instrument concluded between States in written form and
governed by international law, whether embodied in a single instrument or in
two or more related instruments, and whatever its particular designation.
There are many other terms used for a treaty or international agreement,
like act, protocol, agreement, compromis d arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter and modus vivendi.
These terms may be useful, but they furnish little more than mere
description and are all under the general term treaty.
Also, records reveal that the United States Government has stated that it
is fully committed to living up to the terms of the VFA. For as long as
America accepts or acknowledges the VFA as a treaty, and binds itself to
comply with its obligations under the same, there is compliance with the
mandate of our Constitution.
2. Ratification is generally held to be an executive act, undertaken by the head
of the state, through which the formal acceptance of a treaty is
proclaimed. Hence, the power to ratify treaty is vested in the President and
not in the legislature. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification, in accordance
with the principle of and healthy system of checks and balances. However,
per the principle of separation of powers, into the field of negotiation the
Senate cannot intrude, and Congress itself is powerless to invade it.