Chief Justice Reynato Puno: Five paragraphs from the 29-page dissenting opinion of Chief Justice, then Justice Reynato Puno in the Visiting Forces Agreement Case, Bayan et al vs. Executive Secretary et al, October 10, 2000:
(I apologize for the excerpted version, you may read the original in the Supreme Court website to appreciate the scholarly nature of the work):
CJ, then Justice Puno, dissenting:
XXX Quote “I like to think that the most significant issue is whether the Visiting Forces Agreement (VFA) violates Sec. 25, Art. XVIII of the Constitution. I shall therefore limit my opinion on this jugular issue.
Quote “The 1987 Constitution provides in Sec. 25, Art. XVIII, viz:
Quote “ “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.”
Quote “This provision lays down three constitutional requisites that must be complied with before foreign military bases, troops, or facilities can be allowed in Philippine territory, namely: (1) their presence should be allowed by a treaty duly concurred in by the Philippine Senate; (2) when Congress so requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a national referendum held for that purpose; and (3) such treaty should be recognized as a treaty by the other contracting party.
XXX
Quote ”xxx the 1947 RP-US Military Bases Agreement was ratified by the Philippine Senate, but not by the United States Senate. In the eyes of Philippine law, therefore, the Military Bases Agreement was a treaty, but by the laws of the United States, it was a mere executive agreement.[14] This asymmetry in the legal treatment of the Military Bases Agreement by the two countries was believed to be a slur to our sovereignty. Thus, in the debate among the Constitutional Commissioners, the unmistakable intention of the commission emerged that this anomalous asymmetry must never be repeated.[15] To correct this historical aberration, Sec. 25, Art. XVIII of the Constitution requires that the treaty allowing the presence of foreign military bases, troops, and facilities should also be “recognized as a treaty by the other contracting party.” In plain language, recognition of the United States as the other contracting party of the VFA should be by the U.S. President with the advice and consent of the U.S. Senate.[16] xxx”
XXXXX
Quote “The Supremacy Clause of the U.S. Constitution provides:
Quote “ “This Constitution, and the Law of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”[47]
Quote “It is well-settled that this clause provides the constitutional basis for the superiority of a treaty over state law.
XXXXX
Quote “Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective. “To counter-act it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war.” 3 Elliot, Debates, 515. . . . this rule in respect of treaties is established by the express language of cl. 2, Art. 6, of the Constitution. . . .”(emphasis supplied)[49]
XXXXX
Quote “In conclusion, after a macro view of the landscape of U.S. foreign relations vis-a-vis U.S. constitutional law, with special attention on the legal status of sole executive agreements, I respectfully submit that the Court will be standing on unstable ground if it places a sole executive agreement like the VFA on the same constitutional plateau as a treaty. Questions remain and the debate continues on the constitutional basis as well as the legal effects of sole executive agreements under U.S. law. The observation of Louis Henkin, a noted international and U.S. constitutional law scholar, captures the sentiments of the framers of the Philippine Constitution and of the Filipinos in crafting Sec. 25, Art. XVIII of the 1987 Constitution — “(o)ften the treaty process will be used at the insistence of other parties to an agreement because they believe that a treaty has greater ‘dignity’ than an executive agreement, because its constitutional effectiveness is beyond doubt, because a treaty will ‘commit’ the Senate and the people of the United States and make its subsequent abrogation or violation less likely.”[90]
Quote “With the cloud of uncertainty still hanging on the exact legal force of sole executive agreements under U.S. constitutional law, this Court must strike a blow for the sovereignty of our country by drawing a bright line between the dignity and status of a treaty in contrast with a sole executive agreement. However we may wish it, the VFA, as a sole executive agreement, cannot climb to the same lofty height that the dignity of a treaty can reach. Consequently, it falls short of the requirement set by Sec. 25, Art. XVIII of the 1987 Constitution that the agreement allowing the presence of foreign military troops on Philippine soil must be “recognized as a treaty by the other contracting state.”
Quote “I vote to grant the petitions.” Closed-quote.
