Declare EDCA constitutional, govt lawyers ask High Court

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Government lawyers, through the Office of the Solicitor General (OSG), have argued that the Enhanced Defense Cooperation Agreement (EDCA) is constitutional and there is no more need to ask the concurrence of the Senate on the issue.

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In a memorandum before the Supreme Court (SC), Solicitor General Florin Hilbay on Tuesday said the agreement between the Philippines and the United States was well within the power of President Benigno Aquino 3rd to protect the nation as its commander-in-chief, chief executive and chief architect of foreign policy.

Hilbay added that EDCA was just approved to implement and enhance two pre-existing treaties, the Mutual Defense Treaty and the Visiting Forces Agreement, so it did not require concurrence of the Senate, contrary to allegations of petitioners.

He also argued against referral of the EDCA to the Senate.

Assuming that the petitions are not dismissed based on jurisdictional grounds, Hilbay said the court has no choice but to “either dismiss the petitions or grant them.”

A referral to the Senate, he explained, already amounts to a declaration against the EDCA for non-compliance with Article XVIII, Section 25 of the Constitution.

According to Hilbay, the referral would diminish the President’s powers and result in an international embarrassment for the President, adversely affecting the country’s standing in the international community.

A court-mandated referral to the Senate was floated by Associate Justice Marvic Leonen during oral arguments.

A previous decision of the Supreme Court, however, precluded this move.

In Pimentel v. Executive Secretary, the court ruled, “[I]t is within the authority of the Presi-dent to refuse to submit a treaty to the Senate.”

The Solicitor General said the referral to the Senate is “plain and simple delay.”

Even after the EDCA passes the Senate, the petitioners are bound to demand nullification of the agreement once again, bringing the process back to square one and incalculable damage to national security.

Hilbay commented on argument that executive agreements are not recognized in the Constitution, since Article VII, Section 21 only mentions “treaty” and “international agreement.” This theory, raised during oral arguments, was also used in recent Senate hearings on EDCA, based on the assertion that “executive agreements” cannot be found in the Constitution. This view, according to the Solicitor General, “flies in the face of the text of the Constitution, the jurisprudence of [the Supreme Court]and the long-standing practice of the executive department.”

The government’s memorandum cited two separate instances where executive agreements are in fact mentioned in the Constitution—in Article VIII, Section 4(2) and Article VIII, Section 5(2)(a).

“The existence of executive agreements as a distinct category of legal instruments subject to judicial review,” Hilbay said, “is indisputable recognition of the power of the Philippine President to enter into such agreements.”

The memorandum cited a long-standing practice of entering into executive agreements, both in the Philippines and in the US.

This practice is supported by Philippine jurisprudence, through cases that affirm executive agreements as legal instruments that no longer require Senate concurrence. This practice, according to the Solicitor General, is also a recognition of the impracticability of submitting each and every international agreement to the Senate.

The OSG chided the petitioners for going to the Supreme Court without being qualified to ask for judicial relief.

As a general rule, only the Senate as an institution may sue over any alleged impairment of its institutional prerogatives.

In exceptional cases, individual incumbent senators are allowed to file cases in behalf of their institution.

Hilbay, however, found it curious that only former senators joined petitioners.

The Senate’s silence and non-participation in the petitions, he said, is an affirmation of the President’s characterization of the EDCA as an executive agreement: “To date, the Senate has not issued a resolution expressing its objection to the EDCA, much less authorized any of its members to file a suit on its behalf.”

The SC was cautioned against petitioners’ overuse of the “transcendental importance” exception, noting that it cheapens constitutional safeguards and turns the court into a venue for “historical grievances and… purely symbolic claims.”

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