ARTHUR D. LIM AND PAULINO R. ERSANDO, PETITIONERS, VS. HONORABLE EXECUTIVE SECRETARY AS ALTER EGO OF HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, AND HONORABLE ANGELO REYES IN HIS CA…

Lim versus Executive Secretary

The Case

This is Lim versus the Executive Secretary, a petition for certiorari and prohibition, with a petition in intervention, brought by citizens, lawyers and taxpayers, joined by two party-list organizations, against the Executive Secretary as alter ego of the President and the Secretary of National Defense. The petitioners asked the Supreme Court to restrain and permanently enjoin the holding of the joint Philippine and American military exercise known as Balikatan 02-1, and the deployment of United States troops in Basilan and Mindanao, on the ground that these are illegal and violate the Constitution. The case matters because it is the Court's leading statement on how far foreign troops may lawfully operate on Philippine soil under the Mutual Defense Treaty and the Visiting Forces Agreement, read against the 1987 Constitution.

Procedural History

This was an original action in the Supreme Court. The petitioners filed their petition for certiorari and prohibition directly with the Court on the first of February 2002, and the party-list organizations filed their petition in intervention on the eleventh of February 2002. The Solicitor General filed his comment raising threshold objections: that the petitioners lacked standing, that the action was premature, and that certiorari was improper to ascertain a question of fact. The Court brushed aside these procedural barriers in the exercise of its sound discretion, given the paramount importance and constitutional significance of the issues, and took cognizance of the petitions. It then resolved the case on the merits.

Facts

Beginning in January 2002, personnel of the armed forces of the United States started arriving in Mindanao to take part, together with the Philippine military, in Balikatan 02-1, the largest combined training operation involving Filipino and American troops. In theory these exercises simulate joint military maneuvers under the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United States in 1951. The last Balikatan had been held in 1995, and the pause was due to the lack of a formal agreement on the treatment of visiting United States personnel, a gap cured when the two nations concluded the Visiting Forces Agreement in 1999.

The entry of American troops was proximately rooted in the international anti-terrorism campaign declared by President George W. Bush after the events of September 11, 2001, when hijacked commercial aircraft were flown into the World Trade Center and the Pentagon by terrorists with alleged links to the al-Qaeda organization headed by Osama bin Laden.

On the seventh of February 2002 the Senate conducted a hearing on the exercise, at which Vice-President Teofisto Guingona, Jr., concurrently Secretary of Foreign Affairs, presented the Draft Terms of Reference. Five days later he approved the Terms of Reference. These provide that the exercise shall be consistent with the Philippine Constitution and the Visiting Forces Agreement, that no permanent United States basing and support facilities shall be established, that the exercise shall last not more than six months with 660 United States personnel and 3,800 Philippine forces, that only 160 United States forces organized in twelve-man Special Forces Teams shall be deployed with Philippine field commanders, that United States participants shall not engage in combat without prejudice to their right of self-defense, and that the Terms of Reference create no additional legal obligations between the two governments.

Issues

• Whether or not the petitioners have locus standi, or standing, to bring the suit.
• Whether or not the action is premature.
• Whether or not Balikatan 02-1 is covered by the Visiting Forces Agreement.
• Whether or not American troops may engage in combat in Philippine territory under the Mutual Defense Treaty and the Visiting Forces Agreement.

Applicable Provisions

Article 31 of the Vienna Convention on the Law of Treaties states the general rule of interpretation:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

This governs the reading of the ambiguous word "activities" in the Visiting Forces Agreement.

Article 2 of the Charter of the United Nations provides:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

This bars foreign troops from waging offensive war on Philippine territory.

Section 2 of Article II of the 1987 Constitution provides:

The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

This is the constitutional backdrop against which the treaties must be read.

Section 7 of Article II provides:

The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.

This anchors the primacy of national sovereignty in the reading of the agreements.

Section 8 of Article II provides:

The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in the country.

This confirms that the Constitution itself regulates the presence of foreign military elements.

Section 21 of Article VII provides:

No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.

This is the constitutional check on the foreign relations power invoked by the Executive.

Ruling

On standing, the Court agreed with the Solicitor General that the petitioners could not sue as taxpayers, since Balikatan 02-1 does not involve the taxing or spending power, and that their being lawyers does not give them personality. Yet the Court brushed aside the procedural barrier and took cognizance of the petitions, because of the transcendental importance of the issues, following the Emergency Powers Cases and Kilosbayan versus Guingona, where standing requirements were relaxed.

On prematurity, the Court treated the objection with similar dispatch, noting that the petitioners' concerns on the latitude of activity of United States personnel and the duration of their stay had been addressed in the Terms of Reference.

On coverage, the Court held that Balikatan 02-1 falls under the Visiting Forces Agreement. The word "activities" is ambiguous, but the ambiguity was deliberate, to give both parties leeway in negotiation. The Terms of Reference rightly fall within the context of the agreement under the Vienna Convention. Both the history and intent of the Mutual Defense Treaty and the Visiting Forces Agreement support the conclusion that combat-related activities, as opposed to combat itself, are authorized.

On combat, the Court held that neither the Mutual Defense Treaty nor the Visiting Forces Agreement allows foreign troops to engage in an offensive war on Philippine territory. The Terms of Reference themselves stipulate that United States participants may not engage in combat except in self-defense. The Court acknowledged the fine line the parties straddle, invoking the maxim that no one can do through another what he cannot do directly, and warned that the self-defense provision must not serve as camouflage for a war principally conducted by the United States.

Doctrine

First, in cases of transcendental importance, the Court may relax the standing requirements and take cognizance of a petition even without direct injury to the petitioner. Second, a treaty is interpreted in good faith according to the ordinary meaning of its terms in their context and in the light of its object and purpose, and the Terms of Reference form part of that context. Third, the Visiting Forces Agreement authorizes combat-related activities but not combat itself; foreign troops may not wage offensive war on Philippine territory, and any use of force is confined to self-defense. Fourth, all treaties must be read in the context of the 1987 Constitution, including the renunciation of war, the independent foreign policy, and the requirement of Senate concurrence.

Disposition

The petitions were dismissed, and the Court upheld the holding of Balikatan 02-1 as covered by the Visiting Forces Agreement, while ruling that foreign troops may not engage in combat in Philippine territory except in self-defense.

Remember This

Memorize the line that the Visiting Forces Agreement allows combat-related activities but not combat itself, for foreign troops may not wage offensive war here. Examiners use this case on locus standi and transcendental importance, and on the interpretation of treaties alongside the Constitution.