The Supreme Court (SC) is poised to declare the controversial Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States constitutional, according to unimpeachable sources.
The Manila Times has gathered from several sources that an 82-page draft decision upholding the constitutionality of the defense agreement had been circulated among the 14 magistrates.
The ponente of the case is Chief Justice Maria Lourdes Sereno.
In her draft decision, Sereno said EDCA is “not constitutionally infirm,” the sources told the Times.
According to the decision, President Benigno Aquino 3rd, as head of the executive department, has the power to sign agreements on matters of foreign affairs and national security.
An overwhelming majority of the justices are inclined to agree with Sereno since no dissenting opinion had been issued.
Some of the justices who do not see eye to eye with the Chief Justice, however, are waiting for a magistrate to issue a separate opinion concurring with the constitutionality of EDCA and they will favor that opinion so that Sereno will not gain credit from Aquino because she is the ponente of the case.
A source said Sereno circulated her draft decision days before the holding of the Asia-Pacific Economic Cooperation (APEC) to please Malacañang and gain “pogi points [credit]” from the President.
The EDCA decision is seen to be the Philippines’ “gift” to US President Barack Obama, who will be flying in to Manila to attend the APEC summit scheduled from November 17 to 19.
The high tribunal is set to discuss and deliberate Sereno’s ponencia on Tuesday, November 10.
If there will be no objections, the justices may vote on the decision or reset the voting for November 16, the eve of the APEC summit.
Upholding the legality of EDCA will shoot down petitions filed by former senators Rene Saguisag and Wigberto Tañada Sr., Mary John Mananzan, University of the Philippines Professor Pacifico Agabin, Francisco Nemenzo, Harry Roque Jr. and Evalyn Ursua questioning the constitutionality of the defense agreement.
Several groups also filed similar petitions—Bagong Alyansang Makabayan (Bayan), Gabriela Women’s Party-list, ACT Teachers, Anakpawis and Kabataan Party-list.
Named respondents were Aquino, Executive Secretary Paquito Ochoa Jr., Defense Secretary Voltaire Gazmin, Foreign Secretary Albert Del Rosario, Budget Secretary Florencio Abad and the Armed Forces of the Philippines (AFP).
In her ponencia, Sereno maintained that the Philippines needs “friends” and that EDCA will help keep the peace in the archipelago.
She cited the case filed by the government against China, now under arbitration by a United Nations tribunal.
Sources said the Chief Justice dismissed as “speculative” claims that if the defense agreement is put into force, the US may bring in nuclear weapons. She pointed out that the Constitution mandates that the country be free of nuclear weapons.
Sereno also squelched fears that the country could be attacked by the enemies of the US because of the presence of American forces in the Philippines.
The Chief Justice, the sources said, believes that EDCA will not impair the sovereignty and territorial integrity of the country because the defense agreement will be implemented under the Visiting Forces Agreement (VFA).
The draft decision said the Philippines will benefit from the agreement because joint military exercises will be held to enhance capability of Filipino and American troops.
Sereno said in times of disaster and calamities, the Philippines can also call on US forces to help in relief and rescue operations, similar to what US soldiers did when Super Typhoon Yolanda (Haiyan) leveled communities in the Visayas.
Solicitor General Florin Hilbay had argued that signing the agreement was well within the power of Aquino as the country’s commander-in-chief, chief executive and chief architect of foreign policy.
Hibay said EDCA was approved to implement and enhance two existing treaties —the Mutual Defense Treaty and the VFA.