EDCA invalid, Santiago insists

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THE decision of the Supreme Court (SC) to uphold the legality of the EnhanceD Defense Cooperation Agreement (EDCA) between the Philippines and the United States contradicted the power vested by the Constitution on the Senate to ratify treaties, Sen. Miriam Defensor-Santiago said on Sunday.

Santiago, who authored Senate Resolution 1414, expressing the strong sense of the chamber that EDCA requires Senate concurrence, noted that the Constitution clearly states that “without Senate concurrence, no treaty can become law.”

“Now, the court is saying that the executive may call agreements by another name in order to bypass the Senate,” she said in a statement.

The High Tribunal voting, 10-4-1, ruled that the EDCA is constitutional and needs no Senate concurrence because it is merely an implementing agreement of the Visiting Forces Agreement (VFA).


But the senator, a former trial court judge, said the theory that the EDCA finds its validity in the VFA is flawed because both agreements fall under the category of treaties.

She said Article 18, Section 25 of the Philippine Constitution states that “foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate… and recognized as a treaty by the other contracting State.”

“The EDCA is invalid for two reasons: The executive claims that it is not a treaty but merely an executive agreement, and it was not submitted to the Senate for concurrence. The flaw of the VFA, meanwhile, lies in the fact that it is not considered a treaty by the US,” Santiago explained.

According to her, for a treaty to be binding to the United States, it must have the advice and consent of the US Senate.

She pointed out that the VFA was submitted to the US Senate not for concurrence but only in compliance with the Case-Zablocki Act, a law that requires the US State Department to transmit to the US Senate agreements not recognized as treaties.

“Therefore, the EDCA cannot derive its validity from the VFA, because the VFA is also infirm,” Santiago noted.

“Assuming, for the sake of argument, that the VFA is a valid treaty and that the EDCA is its implementing agreement, the Constitution does not say that Senate concurrence for a ‘mother treaty’ extends to the children,” she said.

The senator also questioned the High Court’s premise that the President has broad powers in foreign relations, including the authority to enter into executive agreements such as EDCA.

She also noted that while it is true that the President has broad powers in foreign relations, such powers do not include entering into executive agreements on foreign bases, troops or facilities.

Malacañang, Santiago said, could have cured the EDCA of its constitutional infirmity by considering it a treaty and submitting it to the Senate for concurrence.

“But instead of abiding by the Constitution he has sworn to protect, the President openly defied it by striking a deal concerning foreign bases, troops or facilities through an executive agreement,” the senator said.

She also decried how the SC decision on the EDCA diminished the treaty-making power of the Senate, a constitutional mandate the legislative chamber asserted in a resolution submitted to the court.

While Santiago admitted that the Senate has no choice but to abide by the tribunal’s decision, she insisted that the Senate should push for renegotiation or abrogation of the VFA.

She explained that the VFA and EDCA defeat the purpose of military modernization by making the Philippines dependent on America.

“It may be argued that because of the VFA, the Armed Forces of the Philippines has not felt the need to modernize sufficiently,” Santiago said, adding that the VFA does not imply that the US will come to the aid of the Philippines in case war breaks out between the latter and China.

But Senate Minority Leader Juan Ponce Enrile believes that the SC should be lauded for seeing the importance of EDCA.

The court, Enrile also on Sunday said, sees the need for the Philippines to have an ally that could help protect the country against China.

He also noted that EDCA is a better alternative than having nothing at all.

“The Mutual Defense Treaty [MDT] and EDCA [are]better than nothing, because we have nothing… nakakahiya tayo sa buong mundo [We are so pathetic],” Enrile said in a radio interview aired over dzBB.

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  1. The Mutual Defense Treaty [MDT] and EDCA will be more of deterrent from attack of the Philippines as an ally and for continuing growth, both militarily and economically. EDCA states, “On April 28, 2014, desiring to enhance cooperative capacities and efforts in humanitarian assistance and disaster relief, the two governments executed an Enhanced Defense Cooperation Agreement (EDCA).[11] The EDCA is designed to promote the following between the Philippines the United States:

    Interoperability
    Capacity building towards AFP modernization
    Strengthening AFP for external defense
    Maritime Security
    Maritime Domain Awareness
    Humanitarian Assistance and Disaster Response (HADR)

    The agreement allows U.S. forces access to and use of designated areas and facilities owned and controlled by the Armed Forces of the Philippines at the invitation of the Philippine Government. It contains clear provision that the U.S. will not establish a permanent military presence or base in the Philippines and a prohibition of entry to the Philippines of nuclear weapons.[12] The EDCA has an initial term of ten years, and thereafter will continue in force until terminated by either party after having given a one-year notice of intention to terminate.”