Text of High Court pleading re: VFA, Balikatan

FOR YOUR INFORMATION.

See copy of the "Petition for Certiorari and Prohibition with Application for a Writ of Preliminary Injunction and a Temporary Restraining Order" to be filed before the Supreme Court today, Jan. 28, 2:00 pm.

Petitioners are BAYAN, BAYAN MUNA and the Public Interest Law Center while the named respondents are Defense Secretary Gen. Angelo Reyes and Executive Secretary Alberto Romulo.

For further inquiries regarding this petition, please contact BAYAN at the information below or PILC through tel. nos. 8993416 and 8993439.

Thank you very much,
BAYAN Public Information Dept.





REPUBLIC OF THE PHILIPPINES
SUPREME COURT
Manila

BAYAN (Bagong Alyansang Makabayan),
PUBLIC INTEREST LAW CENTER, and
BAYAN MUNA

Petitioners,


- versus – G.R. No. ________________
Petition for Certiorari and
Prohibition w/ Application for a
writ of Preliminary Injunction
and a Temporary Restraining
Order


DEFENSE SECRETARY ANGELO REYES
and EXECUTIVE SECRETARY
ALBERTO ROMULO,

Respondents.
x ------------------------------------------------------------------ x

PETITION
for Certiorari and Prohibition
with Application for a Writ of Preliminary Injunction
and a Temporary Restraining Order
……………………………………………………….


PETITIONER, by counsel, hereby respectfully states that: it is petitioning the Honorable Supreme Court to enjoin Respondents from continuing a “treaty-less”, (i.e., without any treaty or written executive agreement) incursion of U.S. military troops (Green Berets, Navy Seals, and military advisers) to participate in rescue operations of hostages held by the Abu Sayyaf and other operations for six_months to one year, or the so-called “BALIKATAN 02-1” -- activities not sanctioned by the Mutual Defense Treaty (MDT, hereafter) and not covered by the Visiting Forces Agreement (VFA, hereafter).

If VFA were construed to include rescue missions and training by shooting live targets, i.e., people,(i.e., combat operations) for a duration of six months to one year, then the VFA is unconstitutional .

Prefatory

“In the course of this joint effort, we expect the Abu Sayyaf neutralized and the hostages rescued.” – Defense Secretary and Ret. General Angelo Reyes, Philippine Daily Inquirer, January 15, 2002.

“For realistic training, the location of the anti-terrorism exercise is transferred to Mindanao this year, specifically in Zamboanga and Basilan.” Defense Secretary Reyes, supra.

“When you train, there is such a thing as `live test’ or `field test’. “ Defense Secretary Reyes, supra.

“The 150-600 U.S. soldiers will be at the rear of combat sorties in Basilan.” - National Security Adviser Roilo Golez, Philippine Daily Inquirer, January 19, 2002.

“Balance Piston in Pampanga from today to February 15 is different from Mindanao, ours (Balance Piston) is part of the regular series of VFA exercises.” – Ambassador Jaime Yambao, head of VFA Commission, Interview, ABS-CBN Weekend News, January 27, 2002.

……………………


Petitioners through the instant Petition and the proceedings if allowed, will show that : 1. There is absolutely no written agreement governing the present incursion of U.S. military troops; 2. Balikatan 02-1 is not covered by the VFA contrary to Respondents’ insistence that it is; 3. If it were, then the VFA is unconstitutional.

While everybody agrees that the Burnham couple should be rescued and the terrorist Abu Sayyaf bandit group be wiped out, the activities of U.S. troops or military advisers (who under international law are classified as combatants), even if “they will be at the rear of combat sorties in Basilan” according to National Security Adviser Roilo Golez (Philippine Daily Inquirer, Jan. 19, 2002), constitute combat and not merely training, even as Respondents continue to use the word “training”. This Petition in its discussion shows that indeed such U.S. combatants using live bullets and live targets, and being proximate to or at the rear of Filipino soldiers engaging the Abu Sayyaf, are engaged in combat – not exercises. Respondents call it “on-the-job training”.

It is the MDT, and it is only the MDT, which allows the United States and the Philippine government to use U.S. military troops in Philippine territory in time of external armed attack on the Philippines.

The present incursion therefore of U.S. military troops in Mindanao, whether they are at the rear or at the side, of Filipino troops, has absolutely no legal basis. Respondents should be enjoined.

The Petition

The Petition is a taxpayers’ suit and citizens’ suit to enjoin Respondents to desist from further proceeding with their acts and to annul all proceedings that they have undertaken in connection with Balikatan 02-1.

Respondents have been unable to produce any written executive agreement or treaty or any document binding on both the United States government and the Philippine government to govern the conduct of Balikatan 02-1, except a ten-point guideline unilaterally issued by the President and not binding on the U.S. government. Because of the absence of any such document governing Balikatan 02-1, Petitioners hereby attach a certified true copy of the VFA for reference.

The writ of certiorari and prohibition is being invoked by Petitioners on the ground that Respondents acted without or in excess of jurisdiction and with grave abuse of discretion amounting to lack of jurisdiction in allowing 600 U.S. Green Berets, Navy Seals, and military advisers in Basilan and Zamboanga to conduct combat, i.e., they will be proximate to or at the rear of Filipino combatants engaging the Abu Sayyaf.

In equity, there is no plain, speedy, and adequate remedy for Petitioners but to invoke and avail themselves of the instant Petition pursuant to Sections 1 and 2 of Rule 65 of the Revised Rules of Court.

In view of the transcendental implications of the assailed actions and proceedings of Respondents to the people and the nation, Petitioners implore the Honorable Supreme Court to judiciously exercise its expansive power of judicial review as validated in landmark cases and as mandated in Article VIII, Section 1 (2) of the Constitution, to wit:

“Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government”.


The exercise of judicial review to determine whether the Executive branch of government has exceeded its powers and prerogatives is a duty “specifically enjoined upon it by the Constitution as part of a system of checks and balances” (Dabuet vs. Roche Pharmaceuticals, 149 SCRA 386) especially where it involves the national interest and survival, the integrity of our territory, and the sanctity of the Constitution.

Timeliness of the Petition

The U.S. military troops, armaments, and war materiel, arrived in the Philippines this week and the week before that.
Under Section 4 of Rule 65, this Petition could be filed not later than 60 days from notice of the action or proceeding sought to be enjoined. Thus, the Petition is timely filed, and the issue is ripe for judicial review.

Parties

PETITIONERS

Petitioner BAYAN (Bagong Alyansang Makabayan) is an umbrella movement and broad alliance of church groups, peasant organizations, labor federations, youth and student movements, women’s groups, fisherfolk, indigenous peoples, lawyers, health workers, and other professionals; with business address at No. 23 Maamo St., Sikatuna Village, Quezon City, where it can be served court processes, and represented in this Petition by its Vice Chairperson Dr. Carolina Pagaduan Araullo.

Petitioner PUBLIC INTEREST LAW CENTER is a taxpayer, duly registered with the Securities and Exchange Commission, an organization of lawyers committed to the legal advocacy of causes of the exploited and oppressed and the prosecution/defense of public interest cases, with business address at 4/F KAIJA Bldg., No. 7836 Makati Avenue corner Valdez St., Makati City, represented in this Petition by Atty. Marie Francesca Therese Yuviengco and Atty. Marichu C. Lambino, both of legal age, Filipinos, and with the same address.

Petitioner BAYAN MUNA is a national political party under the party-list system duly registered with the Commission on Elections, with business address at No. 28 Magiting St. U.P. Village, Diliman, QC, represented in this Petition by its Secretary General, Councilor Nathanael Santiago.
The Petitioners submit that they have locus standi having clear personal interests in the matter under judicial review. The proceeding before this Court involves the assertion and protection of a public right and therefore “the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, a part of the general “public” which possesses the right” (Vide: Legazpi vs. Civil Service Commission, 150 SCRA 530).

RESPONDENTS

Respondent Defense Secretary Angelo Reyes is the Secretary of National Defense. In grave abuse of discretion amounting to lack of jurisdiction, he allowed the assailed Balikatan 02-1 and is supervising its operations.

Respondent Executive Secretary Alberto Romulo is the Executive Secretary of President Gloria Macapagal-Arroyo. In grave abuse of discretion amounting to lack of jurisdiction, and upon the direction and control of President Macapagal-Arroyo, he allowed the assailed Balikatan 02-1 even in the absence of any legal basis therefore.

Statement of the Case

On January 12, 2002, President Gloria Macapagal-Arroyo approved a Joint Proposal by the Department of National Defense, Armed Forces of the Philippines and the US Pacific Command for “Balikatan 02-1” what is commonly dubbed as “Kalayaan-Aguila 2002” .

On January 15, 2002, facilities in the form of billeting and training structures were constructed in the military camps in Zamboanga and Basilan.

Last week and the week before that, U.S. troops have started arriving.

Two days ago, or last January 27, 2002, President Macapagal-Arroyo issued a 10-point Guideline for the conduct of Balikatan 02-1

1. Balikatan will be purely an exercise, involving military training of professional troops from the US and the Philippines, and primarily designed to strengthen the AFP Forces. US Forces are not authorized to conduct offensive operations.
2. Balikatan is a facet of the global fight against terrorism.
3. Balikatan is sanctioned by the Constitution and the VFA.
4. Balikatan is backed by the National Security Council which includes the leadership of both Houses of Congress as it is an exercise to strengthen both national security and political will.
5. The command structure of Balikatan consists of separate US and RP units under the overall command of the AFP, and at no point in time will the US forces be allowed to operate independently in Philippine territory, meaning American soldiers will be getting orders from the Philippine commander.
6. The AFP Chief of Staff will have complete control of all the forces with the Balikatan, which is understood at the political and operational level of both sides.
7. The Balikatan is time-built, meaning it will last six (6) months with some 600 US troops involved. The bulk of them to be composed of support service personnel, and 203 US troops will go to Mactan to train our personnel.
8. Only a total of 160 US trainers will be deployed in Basilan as observers, and of this, only two (2) American trainers will accompany each AFP company. The Americans will not be involved in combat operations but they will stay in tactical headquarters.
9. Human rights violations during the exercises will be severely sanctioned. Mrs., Arroyo reactivated the Presidential Commission on Human Rights to be chaired by Justice Secretary Hernando Perez to monitor the exercise.
10. Socio-economic projects will be conducted in the second half of the exercises because Balikatan has military and community development aspects.

Statement of Facts


On January 12, 2002, President Gloria Macapagal-Arroyo approved a Joint Proposal by the Department of National Defense, Armed Forces of the Philippines and the US Pacific Command for “Balikatan 02-1” what is commonly dubbed as “Kalayaan-Aguila 2002” .

AFP Defense Secretary Gen. Angelo Reyes admitted on January 15, 2002 that around 160 US Special Forces and 500 US Support Groups will take part in the Balikatan 02-1 exercises in Mindanao, specifically in Zamboanga and Basilan with a six to twelve month duration. Zamboanga and Basilan happen to be areas where active military operations are currently taking place against the Abu Sayyaf.

The Balikatan 02-1 operations will be headed by B/Gen. Emmanuel Teodosio, AFP Deputy Chief of Staff for Education and Training and B/Gen. Donald Wurster, commander of the US Special Operations Command.

Balikatan 02-1 shall seek to neutralize the Abu Sayyaf and recover an American couple and a Filipino nurse in Basilan.

As announced by the Defense Secretary, Balikatan 02-1 is a three-stage exercise that would include live-fire operations against the Abu Sayyaf or what they call as “live test” or “field test”. In the course of these operations, the American soldiers could return fire if attacked.

On January 15, 2002, the training and billeting facilities of the US Troops were already being constructed at their military camp in Zamboanga and Basilan.

Former Senate President Jovito Salonga exposes on January 16 that a Mutual Logistics Support Agreement had been signed between the Philippines and the United States.

On January 17, 2002, the Vice-President and foreign affairs Secretary was said to have been excluded from the process of approving the bilateral agreement on Balikatan 02-1 and expressed serious reservations on the said exercise as well as the MLSA. All military exercises under the VFA have to be approved by the Council of Foreign Ministers, of which the Vice- president and US Secretary of state Collin Powell are members.

On January 17, 2002, US Senator Sam Brownback of Kansas announced in Wichita, Kansas, that “(i)t appears the Philippines is going to be the second, the next target, after Afghanistan on the war on terrorism”.

On January 23, 2002, the National Security Council convened to discuss Balikatan 02-1. In that meeting, it was agreed upon that the VFA provided the legal framework for Balikatan 02-1 and therefore upheld the legality of the Balikatan in light of the constitutionality of the VFA as enunciated in BAYAN vs. Executive Secretary. In that meeting, it was also announced by the President that two (2) “social components” were to be included in the Balikatan 02-1 i.e. an economic assistance from the US government called “Task Force Gentle Wind” and the reactivation of the Presidential Human Rights Committee.

It was reported by the print media that while the National Security Council was meeting, the US embassy in Manila issued a statement from Powell, which read:

“Well, in reality the Filipino people have been fighting against terrorism, and they have some terrible organizations in the Philippines that kidnap people, that threaten Filipinos, and so as we expand our campaign against terrorism, we want to offer support to nations who are fighting terrorists in their land.

And in this case, in cooperation with the Philippine government and with the permission of the President, we are sending in American trainers to work alongside the Philippine Army and to see if we can help them do a better job of dealing with their problem.


Grounds for Allowance of the Petition


RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT ALLOWED THE INCURSION OF UNITED STATES GREEN BERETS, NAVY SEALS, AND MILITARY ADVISERS IN THE PHILIPINES FOR A DURATION OF SIX MONTHS TO ONE YEAR TO CONDUCT RESCUE OPERATIONS AND COMBAT AGAINST THE ABU SAYYAF WITHOUT ANY TREATY OR WRITTEN EXECUTIVE AGREEMENT THEREFOR, IN DEROGATION OF NATIONAL SOVEREIGNTY AND SECTION 25 ARTICLE XVIII OF THE CONSTITUTION.

I.

THE PRESENT INCURSION OF U.S. MILITARY TROOPS IS NOT SANCTIONED BY THE MUTUAL DEFENSE TREATY.

II.

NEITHER IS SUCH INCURSION OF U.S. MILITARY TROOPS FOR RESCUE MISSION AND FOR A DURATION OF SIX MONTHS TO ONE YEAR COVERED OR COME WITHIN THE PURVIEW OF THE VISITING FORCES AGREEMENT.

III.

IF IT WERE, IF THE VFA IS CONSTRUED TO INCLUDE RESCUE MISSIONS AND COMBAT OPERATIONS BY U.S. MILITARY TROOPS, THEN IT IS UNCONSTITUTIONAL FOR BEING IN DEROGATION OF NATIONAL SOVEREIGNTY AND FOR BEING A VIOLATION OF SECTION 25 ARTICLE XVIII.


Discussion/ Arguments


RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT ALLOWED THE INCURSION OF UNITED STATES GREEN BERETS, NAVY SEALS, AND MILITARY ADVISERS IN THE PHILIPINES FOR A DURATION OF SIX MONTHS TO ONE YEAR TO CONDUCT RESCUE OPERATIONS AND COMBAT AGAINST THE ABU SAYYAF WITHOUT ANY TREATY OR WRITTEN EXECUTIVE AGREEMENT THEREFOR, IN DEROGATION OF NATIONAL SOVEREIGNTY AND SECTION 25 ARTICLE XVIII OF THE CONSTITUTION.


I.


THE PRESENT INCURSION OF U.S. MILITARY TROOPS IS NOT SANCTIONED BY THE MUTUAL DEFENSE TREATY.



The Mutual Defense Treaty provides:

“Art. II. In order to more effectively 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. “

“Art. III. The parties xxx will consult together (when) xxx the territorial integrity, political independence or security of either of the parties is threatened by external armed attack in the Pacific.”

“Art. 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 declares that it would act to meet the common dangers in accordance with its constitutional processes. “

The Mutual Defense Treaty apply only when either party is subjected to external armed attack, i.e., the United States can send military troops to the Philippines to conduct combat operations only when the “territorial integrity, political independence, or security” of the country is threatened by “external armed attack in the Pacific”.

The present incursion of U.S. military troops therefore is not covered by the MDT.
II.


NEITHER IS SUCH INCURSION OF U.S. MILITARY TROOPS FOR RESCUE MISSION AND FOR A DURATION OF SIX MONTHS TO ONE YEAR COVERED OR COME WITHIN THE PURVIEW OF THE VISITING FORCES AGREEMENT



The Visiting Forces Agreement contemplates joint military exercises of a short duration, i.e., four days to four weeks. In fact, when the Visiting Forces Agreement was ratified by the Senate and upheld as constitutional by the Honorable Supreme Court, it was ratified and upheld based on representations of Respondents that the VFA covers only joint military exercises of four days to four weeks.

Respondents in their Comment filed in the case BAYAN vs. Executive Secretary (the VFA case) said the VFA covers joint military exercises of four days to four weeks. The Senate Committee Report on the VFA also stated, based on the government’s representations, that the VFA shall be of four days to four weeks duration and covers mere joint military exercises.

The Balikatan 02-1is not a mere military exercise.

Military activities of whatever size and duration are governed by doctrine, policies, procedures, regulations, and specific orders, the military being one of the most, if not the most, organized and regimented entities man had ever created. Such is their training. Such is their practice.

Military exercises, just like any military operation, are always covered by an Operation Plan (Oplan) which translates to Operation Orders (Oporders) once approved by higher headquarters. Oplans and Oporders clearly and specifically define the situation, mission, objectives, duration, forces involved, concept of operation, and logistics to be used in the activity.

The easiest and most direct way to understand Balikatan 02-1, therefore, is to examine its OPLAN and OPORDERS. This should be possible if government and the military keep to their self-imposed condition of transparency in the conduct of the so-called military exercises. However, their failure to do so from the beginning in order to clarify matters and settle the controversy indicates some difficulty in this regard.

The alternative recourse is to understand the doctrines and procedures governing these activities. In the process, we will be able to determine whether the presence of US troops and the setting up of their bases and facilities, whether for short or prolonged durations of time are sanctioned by our constitution, and whether Balikatan 02-1 is Constitutional or not.

Using this method we can establish that:

1. That Balikatan 02-1 is not a training exercise in accordance with US and Philippine military doctrine.
2. Current military presence and activities of US troops in the Philippines, including Balikatan 02-1, fall under the general category of “Stability Operations” and are governed and guided by US military doctrine, policies and procedures for Stability Operations.
3. Stability Operations conducted by US forces in the Philippines , whether combat or non-combat, as described by US military doctrine, are unconstitutional unless covered by a treaty ratified by the Senate (etc) as provided for by Art XVIII, Sec 25….)

In accordance with the US Army Field Manual 25-4 How to Conduct Training Exercises, the US and Philippine military conduct the following kinds of Training Exercises:

1. Map Exercises or MAPEX
2. Tactical Exercises without Troops or TWET
3. Command Post Exercises or CPX
4. Field training Exercises or FTX
5. Command Field Exercises or CFX
6. Live-Fire Exercises or LFX
7. Fire Coordination Exercises or FCX
8. Deployment Exercises or DEPEX
9. Joint Training Exercises or JTX
10. Combined training Exercises or CTX

Map exercises or MAPEXs are training exercises that merely portray military situations on maps and overlays that may be supplemented with, or replaced by, terrain models and sand tables. MAPEXs enhances decision-making under simulated wartime conditions.

Tactical exercises without troops or TEWTs, on the other hand, are training exercises conducted in the field on actual terrain suitable for training units for specific missions using few support troops. General and subsequent situations are created in a specified terrain to simulate battlefield conditions.
Command Post exercises CPXs are training exercises that may be conducted at garrison locations or in the field. If the CPX is conducted in the garrison, it takes the nature of a Map Exercise but is expanded by using tactical communications systems and personnel in a command post environment. If the CPX is conducted in the field, the commanders practice combined arms integration and tactical emplacement and displacement of Command Posts and use organic and supporting communications equipment in the specified territory. This training enhances survivability operations such as dispersion, camouflage, and security.
Field training exercises or FTXs are training exercises conducted under simulated combat conditions in the field. The training is conducted in a realistic environment enhancing intelligence, combat support, combat service support, maneuver, communications against an actual or simulated opposition force but do not use live fire
The Command field exercise or CFX is an FTX with reduced combat unit and vehicle density. The training equips the commanders and support staff to gather information, provide communication links, and develop intelligence.
Live-fire exercises LFX is a training exercise in which organic and supporting weapon systems with full-service ammunition are used. LFXs are executed under simulated battlefield conditions. They are employed by commanders to train integration of fire and maneuvers against realistic targets but not real targets.
Fire coordination exercises or FCX is a training exercise for the purpose of enhancing command and control skills through the integration of all organic weapon systems, as well as indirect and supporting fires. Realistic battle-field situations are created but the targets are controlled mechanically and electronically which appear at the appropriate places and times according to the scenario
Deployment exercises or DEPEX provide training in the tasks and procedures for deploying of soldiers from home stations or installations to areas of hostilities. Emergency conditions are simulated. An example of this is the emergency Deployment Readiness Exercise or EDRE.
Joint training exercises or JTX involve two or more services of the US armed forces.
Combined training exercises or CTX involve armed forces from two or more nations. The CTX may be in the form of any of the above-mentioned training exercises.
The above-mentioned exercises have the following common characteristics:
1. The training exercises are performed in simulated or controlled conditions;
2. The training exercises may involve realistic but not real combat situations or actions (live conflict situations); and specifically,
3. The training exercises do not involve real adversaries or opposing forces. (live targets where the opposing force is expected to be captured or killed).

The Balikatan 02-1, on the other hand, has the following characteristics:

1. The so-called training exercises shall be conducted jointly by the Philippine and US armed forces. In this respect, the US and RP teams shall be headed by B/Gen. Emmanuel Teodosio for the AFP and B/Gen. Donald Wurster for the US Special Operations Command.
2. The objective of the so-called training exercises is to neutralize the Abu Sayyaf and recover an American couple and a Filipino nurse in Basilan, actual captives, and not simulated crisis situations.
3. The so-called training exercises shall be conducted in an actual combat area (battle zone) where the Philippine Armed Forces have a running military encounter or activity.
4. The so-called training exercises shall use live fire against live targets, the latter being the Abu Sayyaf.
5. The US forces shall be allowed to return fire if attacked. The possibility of being attacked however is imminent due to the actual combat conditions prevailing in the chosen area.

Based on the above discussion, the Balikatan exercise is not a military exercise within the purview of US & Philippine military standards. The Balikatan exercise is in fact an offensive military operation, a situation not contemplated in the Visiting forces Agreement. The Balikatan exercise allows a foreign military power to interfere in the protection of the Philippines’ internal security and contravenes the principle enunciated in section 3 Article II of the Constitution that the Armed Forces of the Philippines, and no other, is the protector of the people and the State. Its goal is to secure the sovereignty of the state and the integrity of the national territory. (Vide: Article II)

III.


IF IT WERE, IF THE VFA IS CONSTRUED TO INCLUDE RESCUE MISSIONS AND COMBAT OPERATIONS BY U.S. MILITARY TROOPS, THEN IT IS UNCONSTITUTIONAL FOR BEING IN DEROGATION OF NATIONAL SOVEREIGNTY AND FOR BEING A VIOLATION OF THE CONSTITUTION.



If the VFA were construed to allow foreign troops to engage in combat operations in Philippine territory, then the VFA allows foreign invasion of Philippine territory and would be rendered unconstitutional .

The VFA as exemplified by the Balikatan 02-1 exercise would then be an instrument for the propagation of the Framework of US Presence in the Philippines: Intervention

The National Military Strategy of the United States Armed Forces is:

“To defend and protect US national interests, our national military objectives are to Promote Peace and Stability and, when necessary, to defeat Adversaries. US Armed Forces advance national security by applying military power as directed to help Shape the international environment and Respond to the full spectrum of crises, while we also Prepare Now for an uncertain future.” (Vide: Chapter 9 of the US Army Field Manual 100-5)



This US military strategy falls under “Stability Operations” wherein combatant commanders employ Army forces, mainly Special Forces, outside the United States to protect and promote its national interests by influencing the threat, political and information dimensions of the host state.

The types of stability operations include peace operations, foreign internal defense, security assistance, humanitarian and civic assistance, combating terrorism and show of force.

Interestingly, participation in foreign internal defense as explained in the US Field Manual 100-5 includes providing other countries with military training under security assistance to free and protect affected countries from subversion, lawlessness and insurgency, to wit:

Security assistance refers to a group of programs that support US national policies and objectives by providing defense articles, military training, and other defense-related services to foreign nations by grant, loan, credit, or cash sales. Examples of US security assistance programs are Foreign Military Sales, Foreign Military Financing, International Military Education and Training, the Economic Support Fund, and Arms Export Control Act-licensed commercial sales. Army forces support security assistance efforts through military training teams, maintenance support personnel and training, and related activities such as humanitarian operations. (Vide: Par. 9-32)



Thus, even if the Balikatan exercises were to be considered as a training exercise, it would seem that training exercises contemplated by the Philippines’ US counterparts form part of its Stability Operations to protect and promote the interests of the United States. This runs counter to the declared policy of the constitution found in section 7 Article II of the Constitution, which states:

“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.”

It bears stressing that Foreign Internal Defense (FID) is “a primary program that supports friendly nations operating against or threatened by hostile elements. The categories of FID operations are: Indirect support, indirect support (not involving combat operations) and combat operations to support host nation efforts.

Combat operations include “offensive and defensive operations conducted by US forces to support a host nations fight against insurgents or terrorists.” (Vide: Par. 9-27 of the US Field Manual 100-5)

Additionally,
Most FID activities focus on helping a host nation prevent an active insurgency from developing. If an insurgency already exists or preventive measures fail, FID focuses on eliminating, marginalizing, or reassimilating insurgent elements. The US provides military support to counterinsurgency efforts, recognizing that military power alone cannot achieve lasting success. US military power cannot, and will not, ensure the survival of regimes that fail to meet their people's basic needs. Military programs and US actions promote a secure environment in which to implement programs that eliminate causes of insurgencies and encourage insurgents to rejoin civil society. As with other FID actions, support to a counterinsurgency balances security with economic development to enhance or reestablish stability. (Vide: Par. 9-28; Chapter 9; US Field Manual 100-5)
Army forces conduct support to counterinsurgencies within the context of the US ambassador's country plan and the host nation's internal defense and development strategy. The goal is to integrate all resources—civilian and military, public and private—so that host nation combat operations and development efforts complement each other. The intended result is measurable improvement in the economic, social, and political well-being of those supported. Army forces can also assist in development programs by helping governmental and private agencies provide essential supplies and services. (Vide: Par. 9-29)
Support to counterinsurgencies helps host governments deal with two principal groups: the insurgents and the people. Army forces help host governments protect the people from insurgent violence and separate them from insurgent control. These actions require persuasion, prosecution, and destruction to attack insurgent leadership and organization. The goal is to deny insurgent organizations sources of personnel, materiel, funds, and intelligence. The fundamental cause of insurgent activities is widespread dissatisfaction with standing ethnic, religious, political, social, or economic conditions by some sizable portion of the population. For US military power to be effective in supporting a counterinsurgency, the host government must address or revise its policies toward the disaffected portions of the population. There are few immediate, decisive results in military operations against insurgent forces. When results occur, they are short lived unless the host government acts just as decisively to address the problems that underlie the insurgency. (Vide: Par. 9-30)
Army forces help the host government police, paramilitary, and military forces perform counterinsurgency, area security, or local security operations. They provide advice and assistance in finding, dispersing, capturing, and destroying insurgent forces. Army forces emphasize training national, state, and local forces to perform essential defense functions. Their aim is to provide a secure environment in which development programs can take effect, while respecting the rights and dignity of the people. (Vide: Par. 9-31)

Thus, the danger of extending these so-called Balikatan military exercises to operations against the New Peoples Army or the Moro Islamic Liberation Front is likely under the framework of declared US military policy and regulations.

The significance of the US framework cannot be overstressed especially in light of the fact that the Visiting Forces Agreement has been framed in such a way as to allow flawed interpretations and assertions of the application of US policies in the conduct of such exercises.

Grounds for the Issuance of a Temporary Restraining Order
and Injunction



As averred earlier, Petitioners have a good and valid cause in asserting that Respondents acted in excess of jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction when they allowed the incursion of U.S. military troops in Philippine territory to participate in rescue missions and combat operations of the Philippine military. Said Respondents are threatening to implement said missions, dubbed as Balikatan 02-1, that has no legal basis and is unconstitutional. Consequently, Petitioners are entitled to the reliefs demanded, and the whole or part of such reliefs consist of directing, commanding, and/or restraining the Respondents from continuing with Balikatan 02-1 pending the determination of the proceedings before this Honorable Court.

Unless Respondents are restrained from continuing with their acts and the implementation of Balikatan 02-1, they will definitely proceed with the execution thereof to the great prejudice of herein Petitioners-taxpayers.

There is no other course of action, no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. The writ of injunction is the most expeditious and appropriate manner of preventing Respondents’ unconstitutional, baseless, and unlawful acts which would cause great and irreparable injury to Petitioners.

Petitioners therefore hereby apply for a writ of injunction to prevent Respondents from implementing Balikatan 02-1. For this purpose, Petitioners hereby expressly manifest that they are ready, willing, and able to post a nominal bond in such amount as may be equitably and reasonably fixed by this Honorable Court.

In view of the urgency of this matter, and in order not to render moot and academic the relief prayed for from this Honorable Court, Petitioners are entitled to the issuance of an order temporarily restraining Respondents from implementing Balikatan 02-1.

Serious and irreparable damage will result and will be suffered by the public and by Petitioners unless a TEMPORARY RESTRAINING ORDER is issued, before the matter can be heard on notice to prevent Respondents from performing and committing the acts complained of above.

Prayer

WHEREFORE, premises considered, Petitioners respectfully pray that:

1.Upon the filing of this Petition, a Temporary Restraining Order be immediately issued commanding the Respondents to desist and refrain from implementing the Balikatan 02-1 during the pendency of this Petition before the Honorable Court and setting the Application for Preliminary Injunction for hearing.

2.After due notice and hearing ad upon the filing of a bond which this Honorable Court may equitably and reasonably fix, a writ o preliminary injunction be issued commanding and directing the Respondents to desist and refrain from formal notification of the U.S. and from executing and implementing the assailed Balikatan 02-1.

3.After deliberation, a Decision be rendered declaring the Balikatan 02-1 illegal and unconstitutional.



Petitioners pray for other just and equitable reliefs.

Makati City, Metro Manila, January 28, 2002.

PUBLIC INTEREST LAW CENTER
Counsel for Petitioners
4/ F KAIJA Bldg., No. 7836 Makati Ave.
cor. Valdez St., Makati City, Metro Manila

By:

MARIE FRANCESCA THERESE YUVIENCO MARICHU C. LAMBINO
IBP No. 551629/ 1-16-02/ RSM IBP Life No. 11111
PTR No. 010632/ 1-16-02/ Mandaluyong City PTR No. 2083648/ 1-20-02/ QC



COPY FURNISHED:

OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo St., Legazpi Village, Makati

Defense Secretary ANGELO REYES
Department of National Defense
Camp Aguinaldo, Quezon City

Executive Secretary ALBERTO ROMULO
Malacañang Palace
Manila