What it’s all about
THE Enhanced Defense Cooperation Agreement between the Philippines and the United States allows the US to build structures, store as well as preposition weapons, defense supplies and materiel, station troops, civilian personnel and defense contractors, transit and station vehicles, vessels and aircraft in the Philippines for a period of ten years.
This raises two questions:
One, is it good for the Philippines or not? This is political, and for the political community to decide.
Two, is it in accord with the Constitution or not? This is constitutional, and for the Supreme Court to decide.
Article XVIII, Section 25 of the Constitution provides: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”
Why a treaty
This does not constitute a ban on the setting up of foreign military bases, or the entry of friendly foreign troops in the Philippines. This is a political choice which the Executive is free to make, according to law, in pursuit of the national interest and the common good. But it must be done through a treaty duly concurred in by the Senate, and if necessary approved by the people in a referendum or plebiscite. Does the EDCA measure up to this requirement?
Like any other executive act, the wisdom or lack of wisdom of EDCA is not subject to review or adjudication by the Supreme Court. It answers only to informed public opinion and the people’s sovereign right and duty to support the government if and when they believe it is right, and to censure it if and when they believe it is wrong. On the other hand, whether or not the people approve, since the issue of constitutionality has been raised, the Court must rule whether the agreement is constitutional or not. Is it merely an executive agreement, or is it in fact a treaty that requires concurrence by the Senate?
Some newspapers have a penchant for saying the Senate must ratify all treaties. This is incorrect usage. Concurrence, not ratification, is the right word. The Executive ratifies treaties, but such ratification must be concurred in by at least two-thirds of all the members of the Senate. Only then can it take effect. This is the main point at issue.
In 2012, President B. S. Aquino 3rd shut out the Senate from this process, saying EDCA was strictly an “executive agreement.” As a former senator, who used to chair the Senate foreign relations committee and was Majority Leader to five Senate presidents, I was truly surprised by that statement. I had thought that given Cory Aquino’s bitter experience in 1992, when the Senate rejected her proposed treaty extending the bases by another ten years, PNoy had a good reason to be wary of “knives at the Senate,” but since he had already seized control of the three branches of government, he would have no problem getting the Senate to support his open initiative. He obviously did not want to risk repeating his mother’s fate. And he wanted President Obama and the world to see that he was the Philippine government.
In 2014, former Senators Rene Saguisag and Wigberto (Bobby) Tanada, Bayan Muna Representatives Neri Colmenares and Carlos Zarate, etc. questioned its constitutionality before the Supreme Court. They alleged grave abuse of discretion and violations of the national interest, citing its “lopsided provisions.” Their petition was supported by a Senate resolution stating EDCA was a treaty that could not be implemented without Senate concurrence. But without a temporary restraining order from the High Court, the agreement had already begun to run and the Senate resolution had no effect.
On Tuesday (Jan. 12), after nearly three years, the High Court, by a vote of 10 to four, with one member abstaining, finally ruled. The “executive agreement” is constitutional, said the Court, without need of Senate concurrence. The dissenting opinions by Justices Teresita Leonardo-de Castro, Arturo Brion, Marvic Leonen and Estela Perlas-Bernabe are not yet out, but Court sources said they are “exceptionally persuasive and strong.”
In the ruling penned by Chief Justice Maria Lourdes Sereno, the Court said “no court can tell the President to desist from choosing an executive agreement over a treaty to embody an international agreement, unless the case falls squarely within Article XVIII, Sec. 25.” It described EDCA as an implementing agreement of the 1950 Mutual Defense Treaty and the 1998 Visiting Forces Agreement.
I could not believe the Court, in all its wisdom, was saying this. After the termination of the bases agreement in 1991, we were left with the MDT, which provides for mutual defense. Under this treaty, US forces were still free to come and visit for short military exercises. But we did not have specific rules governing these visits. In 1998, the VFA was negotiated between US Ambassador Thomas Hubbard and Foreign Secretary Domingo Siazon Jr. to define the rights and duties of these visiting servicemen.
The VFA came to the Senate in 1999 during the administration of President Joseph Ejercito Estrada, who as senator had voted against the extension of the bases. The Senate resolution of concurrence in the ratification of the VFA was jointly sponsored by then Senate President Pro Tempore Blas Ople, as chairman of the Foreign Relations committee, and Sen. Rodolfo Biazon, chairman of the national defense committee. After a few days of floor debate, I was asked by the Senate leadership to come in as a third co-sponsor of the Senate resolution of concurrence.
Under gruelling interpellation by the anti-bases and anti-VFA champion Bobby Tanada, I carried the main burden on the Floor, defending the VFA as an “implementing agreement” of the MDT. We survived the interpellations, and got the two-thirds majority to concur in the treaty, with some accompanying precautionary measures. But Tañada and company still brought the case to the Supreme Court, questioning its validity on the basis of the fact that while the Philippine government considered VFA a treaty, the US government merely considered it an “executive agreement.”
This was ultimately resolved after the US issued an undertaking saying the US government officially “considers the VFA a treaty.”
What surprises me now is the Court statement saying the EDCA is a mere implementing agreement of the VFA, which is an implementing agreement of the MDT. How is it possible to have an implementing agreement of an implementing agreement? Something seems terribly wrong here.
US State Secretary John Kerry was not the only one who was quick to applaud the Supreme Court decision. Many friends of mine here and abroad were, too. But some analyst-friends were also as quick to point out that Aquino circumvented the Constitution while robbing the Senate of its constitutional role in treaty-making. In declaring EDCA constitutional, the High Court drove the final nail on the Senate’s coffin.
What SC could’ve done
The Court was right to recognize the President’s primary role in foreign affairs. But this does not need sacrificing any provision of the Constitution. The Court could have solemnly pronounced that the decision to “enhance defense cooperation” with the US is a political decision, where the Court has no jurisdiction. But the “entry of US troops and facilities” falls precisely under Article XVIII, Sec. 25, and is therefore subject to Senate concurrence.
This is where Sereno’s ponencia is seen to err. Indeed, no court can prevent a President from entering into an executive agreement, as the Chief Justice says, but when the Constitution says the matter requires a treaty duly concurred in by the Senate, an executive agreement cannot possibly fulfill the requirement.
Magnet or repellent?
Many people believe EDCA is our answer to our problem with China, as far as our West Philippine Sea dispute with the Asian giant is concerned. They also believe it would hasten our own military modernization, with US assistance. But just as the late Sen. Claro M. Recto during the Cold War used to say that the US bases could serve as magnets for a thermonuclear attack from the Soviet Union, today’s critics of the US “pivot to Asia” are saying that EDCA increases the risks of war with China and makes us vulnerable to Chinese nuclear missiles.
Silence of wannabes
This is by far the biggest national security and foreign policy issue that has come up during this presidential election season. But so far we have not heard anything from any of the political parties. Although foreign policy never figures in our presidential or senatorial debates, it would be unforgivable if something as important as this were completely bypassed by the candidates. A statement released by Chairman Antonio “Butch” Valdes of Save the Nation Movement has accused Aquino and the High Court of “betraying” the Filipino people, by creating a program that would ultimately destroy over 100 million Filipinos.
This deserves a response. But who will provide it? Not a few share this fear or belief. Yet we have a right as a people to know that we have not been programmed for war or death.
Will our “leaders” speak?