EDCA and its Constitutional Implications

The Enhanced Defense Cooperation Agreement (EDCA) is an agreement between the Philippines (PH) and the United States (US) signed by PH Defense Secretary, Voltaire Gazmin, and US Ambassador, Philip Goldberg, which is envisioned to advance the implementation of the PH-US Mutual Defense Treaty (MDT). In a nutshell, the EDCA deepens defense cooperation between PH and US and maintains and develops their individual and collective capacities to resist armed attack by: improving interoperability of PH and US’ armed forces, addressing short-term capabilities gaps, promoting long-term modernization, helping maintain and develop additional maritime security, and expanding humanitarian assistance and disaster relief capabilities, and authorizing US access to agreed locations in the PH territory.
 
While the EDCA appears to have a laudable objective, that is to advance the PH’s defense mechanism with the aid of US, several issues were raised by different personalities as to its validity in light of the mandates of the 1987 Constitution. At the outset, there are views that the PH government must comply with Constitutional requirements when entering into international treaties and agreements such as the EDCA. One of which is the requirement for concurrence by at least two-thirds of all the Members of the Senate in order for any treaty or international agreement to be valid and effective under Article VII, Section 21 of the 1987 Constitution. However, the EDCA was only signed by PH Defense Secretary and US Ambassador in Manila, and was not submitted for concurrence to the Senate.

Nevertheless, a question still remains on whether the Agreement involves a treaty which requires Senate concurrence or a mere executive agreement which do not require legislative concurrence. The Department of National Defense Undersecretary and the PH’s chief negotiator Pio Lorenzo Batino stated that “EDCA is just the enhancement of that capacity as joint exercises are envisioned to do… This policy was reaffirmed in the Visiting Forces Agreement (VFA) … The EDCA just further implements the policies already agreed… Thus, the EDCA does not need ratification.”

However, a number of individuals are, at present, assailing the constitutionality of EDCA through its petitions filed in the Supreme Court. In a petition for certiorari and prohibition filed by Rene Saguisag, et al., the following constitutional defects against EDCA were raised: EDCA cannot further the MDT between PH and US which is unconstitutional and contrary to the intents and purposes of the UN charter; the EDCA violates the constitutional prohibition on nuclear weapons in the country and deprives the Supreme Court of its constitutional prerogatives; the EDCA is contrary to national interest; the EDCA failed to comply with the constitutional requirements for the validity of a treaty as it was not transmitted to the Senate for concurrence, among others.

The Supreme Court is yet to issue its stand on this matter. While it may be said that the EDCA appears to be unconstitutional on its face, in the absence of an express pronouncement by the Supreme Court declaring the EDCA as unconstitutional, it shall be presumed valid in its current operation.