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SEPARATE OPINION *

PANGANIBAN, J.:

Through their Petition for Certiorari and Prohibition, Arthur D. Lim and Paulino R. Ersanda -- joined by Intervenors Sanlakas and Partido ng Manggagawa -- plead for the issuance of an order restraining the respondents from proceeding or continuing and completing the so-called Balikatan 02-1 on the ground that the exercise is not sanctioned by any treaty and is, therefore, allegedly unconstitutional.

Agreeing with the Comment of the Office of the Solicitor General (OSG), the ponencia of Mr. Justice Sabino R. de Leon Jr. dismisses the Petition essentially on these procedural grounds:

1. As taxpayers, petitioners do not have legal standing or locus standi, because Balikatan 02-1 does not involve the exercise by Congress of its taxing or spending power.

2. Certiorari and prohibition are improper remedies, because petitioners have not alleged sufficient facts upon which grave abuse of discretion or excess/lack of jurisdiction could be argued from.

3. The Petition is premature because the alleged violation of the Constitution is merely speculative, not actual or imminent.

4. Though entitled Certiorari and Prohibition, the Petition is really one for declaratory relief which merely seeks an advice or opinion, not a decision. The Supreme Court has no jurisdiction to issue opinions or advices.

Ordinarily, the above reasons would indeed be sufficient to cause the dismissal of a petition. However, because of the transcendental importance of the main question raised the constitutionality of the Balikatan exercise the Court, I believe, could have exempted this case from these procedural requirements and tackled the case on the merits, if only to put to rest the legality of this major event of public interest in our country and even in the world. I, for one, would have voted to set aside these legalistic obstacles, had the Petition presented enough factual moorings upon which to base an intelligent discussion and disposition of the legal issues.

For instance, this Court cannot be called upon to decide the factual issues of whether the US forces are actually engaging the Abu Sayyaf Group in combat and whether they will stay in our country permanently. This Court has no authority to conduct a trial, which can establish these factual antecedents. Knowing what these antecedents are is necessary to determine whether the Balikatan violates the Constitution or the Mutual Defense Treaty (MDT) of 1951 or the Visiting Forces Agreement (VFA) of 1999. Verily, the Petition has not even alleged that the American troops have indeed been unconstitutionally engaged in actual offensive combat. The contention that they would necessarily and surely violate the Constitution by participating in the joint exercise in Basilan is merely speculative. Petitioners aver:

American soldiers with high-tech weaponry, disguised as trainers or advisers to Filipino troops, will go to the war zones of Basilan. Hence, while dubbed as a military exercise, it is in reality a continuing combat operation by the AFP against the Abu Sayyaf to be participated in this time by U.S. troops. It has been admitted that U.S. advisers will accompany Filipino soldiers on patrol in the combat zones.

Also, a base of operation will be in the Sampinit complex which is in the heartland of the Abu Sayyafs territorial domain in Basilan island. A shooting war, not just an exercise, is unavoidable.

That a shooting war is unavoidable is conjectural; at best, a conclusion that is not borne by solid factual moorings. Cases cannot be decided on mere speculation or prophecy. The Petition claims that while the US troops are disguised as advisers or trainors or chaperons, they are actually combatants engaged in an offensive war against local insurgents. Again, there is no solid factual basis for this statement. It may or may not be true. The Petition also alleges, again without firm factual support, that the American forces will stay here indefinitely for a year or even more depending on the need of the AFP for them.

On the other hand, the OSG assures that petitioners apprehensions are belied by the Terms of Reference (TOR) approved by both the Philippines and the United States, which expressly limit the conduct and completion of the exercise within a period not exceeding six (6) months and prohibits the American participants from engaging in combat, without prejudice to their right to self-defense.

I stress that cases cannot be decided by this Court on the basis of speculative or hypothetical assumptions like If the facts were these, then our decision would be this; on the other hand, if the facts change, then our ruling would be modified as follows. Decisions of this Court especially in certiorari and prohibition cases are issued only if the facts are clear and definite. As a rule, courts may not consider or judge facts or matters unless they are alleged in the pleadings and proven by the parties. Our duty is to apply the law to facts that are not in dispute.

In the absence of firm factual findings that the Americans will stay indefinitely in our country or are engaged in actual offensive combat with local insurgents as alleged by petitioners, respondent Philippine officials who are hosting the Balikatan exercise cannot possibly be imputed with grave abuse of discretion an indispensible element of certiorari.

True, there are some questions that may genuinely be raised in regard to the Balikatan 02-1 vis--vis our Constitution, the MDT and the VFA, like the following:

(1) Is the Abu Sayyaf Group composed of international terrorists whose acts and practices violate the United Nations Charter to such an extent as to pose a threat to international peace and security?

(2) Is there an external armed attack against the Philippines sufficient in force and magnitude as to justify an invocation of the MDT?

(3) Are the size, the kind, and the location of the Balikatan deployment justified by the nature, the scope, the duration and the kind of activities allowed under the VFA?

(4) Is it true that the real American objective is the rescue of ASG hostages Martin and Gracia Burnham, who are both American citizens? If so, is such rescue legally justified?

(5) Does the Balikatan pose a political question which the Supreme Court has no authority to rule upon, and which may only be decided by our people directly or through their elected representatives?

Unfortunately, the foregoing and other similar nagging questions cannot be judicially taken up and answered until a petition, sufficient in form and substance, is properly presented to the appropriate court.

FOR THE FOREGOING REASONS , I vote to DISMISS the present Petition.

* At petitioners' insistent request, the Court had to speed up the deliberation and disposition of this case, as the Balikatan may soon be completed and the Petition rendered moot. Hence, I wrote this Opinion hurriedly without the benefit of the usual citations of legal authorities.