Urgency vs. Constitution

We Filipinos are well aware what the situation we are having with regard to the land dispute we are facing with china. In our current position we cannot demand nor defend ourselves even if the international court’s decision goes with the Philippines, china might disregard the decision and just continue bullying us. The government resulted on solutions for the Philippines to be ready just in case china will continue to assert its claim and put our country on a situation that we do not like.

The Enhance Defense Cooperation Agreement (EDCA) was recently decided by the Supreme Court as constitutional   even though it was assailed as unconstitutional because of the reason that it must be considered as a treaty which requires the majority of votes of the senate and congress. The Solicitor General argued that it is only an “Executive Agreement” therefore it does not require the ratification of the congress and the senate.

As an Executive Agreement it merely implements an older and more encompassing contract such as the Mutual Defense Treaty. With EDCA deemed as not a treaty, the requirement for Senate’s concurrence under the law does not apply. This decision can be used by a president for political purpose and might enter into an international agreement and just declare it as an Executive Agreement.

I agree on the fact that we are an urgent need to look for solutions that will help us somehow stand our ground if the worse will come. I also believe that we cannot let our fear to be an excuse to disregard what is stated in our constitution since it is the supreme law of the Philippines.

The Strongest Ally

The presence of US military bases in the Philippines began when Spain ceded it to the United States after the outbreak of Spanish-American war in 1898. However, when the country gained its independence from the Americans in 1946, it didn’t cease. Tracing from history, the country has entered into agreements and treaties with the U.S. in matters of retaining military bases of the latter: the Military Bases Agreement (MBA) of 1947, the Military Assistance Agreement of 1947, the Mutual Defense Treaty (MDT) of 1951, and the Visiting Forces Agreement (VFA) of 1999. The Philippines being a former colony of the U.S. has evidently maintained a strong relationship with the latter.

Early this year, the Philippines and the United States concluded the Enhanced Defense Cooperation Agreement (EDCA for brevity) by virtue of an Executive Agreement entered into by the leaders of both countries. According to the Department of Foreign Affairs, EDCA paves way to the increased presence of American troops in the country and gives them wider access to military bases on Agreed Locations but does not authorize permanent establishment of US bases within the archipelago.

In an article posted on 19 October 2015 on the “We Are The Mighty” website, the Philippine military has remained ill-equipped despite challenges in the region making it the sixth worst in the world. On the other hand, the U.S. remained to be the largest. Noting this, it is not questionable why the President, backed with the Armed Forces of the Philippines, humbly asked for the assistance of the U.S.

When asked about the EDCA, President Obama said in an interview:

“With respect to the new Defense Cooperation Agreement that’s been signed, the goal here is wide-ranging. We’ve had decades of alliance with the Philippines, but obviously in the 21st century we have to continue to update that. And the goal for this agreement is to build Philippine capacity, to engage in training, to engage in coordination – not simply to deal with issues of maritime security. But also to enhance our capabilities so that if there’s a natural disaster that takes place, we’re able to potentially respond more quickly; if there are additional threats that may arise, that we are able to work in a cooperative fashion.”

The Philippines has been under three regime of colonization- Spanish, Japan and U.S. Among the three, it is only the U.S. that we have consistently maintained an ally with. It is our pride that our past generations have made it to attain independence. Independence is to have total freedom from the control of outside forces. However, it must not to be understood as total reliance to the very limited resources that our country has. We need assistance. What is independence if there is no stability?

EDCA is timely, just and needed. We need reliance and alliance with the U.S. it being proven to be the only one to have remained as our strongest ally.

Will EDCA Really Help?

The Philippines has been conquered by different countries. Suffering after suffering, we have become a target to powerful countries and improving countries alike. They prey on us because they know we lack the technology, the resources and most importantly the defense.

The United States of America made it appear that they were here to help us during the Spanish Regime. Only to find out, they were out to conquer us too. Deceit was employed in order to make use of the vast lands for military bases, the waterways for setting up their vessels. They were successful enough to bend the government to sign the different treaties to make sure they are able to manage our resources.

The government did its part. It tried to stop the different treaties that the US government came up with. But to no avail. They were able to reduce the longevity of treaty but later on the US government still tried to come up with another one.

History keeps repeating itself. This was what came to mind when the news of the Chinese government has taken over Mischief Reef and subsequently the Scarborough Shoal. When the US bases were removed, automatically there was an impression that the hegemonic presence is also gone. This created a lot of concern to weak countries while it gave rise to the confidence of strong countries. China, being a progressing country, assumed power and seized the islands we claimed ours.

Having entered into defense treaties, I believe that the Philippines will benefit from another or from strengthening what already is in effect. Reading the decision of the Supreme Court, I cannot help but believe and agree with their decision. EDCA is there to merely implement the Mutual Defense Treaty (MDT).

EDCA or Enhanced Defense Cooperation Agreement in itself means, uniting of the Philippines and the US in improving our defense further. This is certainly attainable give the track record of the US. But others believe this is just their ploy to further abuse our vulnerability. True enough the MDT nor EDCA will not protect the Kalayaan Group of Islands. But it will surely create a great signal and impression to others that we are not alone. And a big power is behind in helping us in case they plan to once again seize or disrespect our territories.

Again, I see EDCA as means to improve our defense, to help us and not to exploit or take advantage of our openness to outside help.

EDCA: A treaty or not a treaty?

Almost two years after the group of former Senators Rene Saguisag and Wigberto Tañada filed a petition assailing the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA), the Supreme Court, on January 16, 2016, ruled that the EDCA is not unconstitutional; a decision which, I believe, has severe ramifications on matters of national security and foreign affairs.

The crux of the issue is whether the EDCA requires the concurrence of two-thirds of the Senate as mandated by Section 21, Article VII of the 1987 Constitution.[1] To put it in another way, is the EDCA a treaty as the petitioners claim, or is it merely an executive agreement as the Solicitor General argues? In answering this question, it has then become necessary to distinguish a treaty from an executive agreement. The task, however, is a complex one as it entails the use of different perspectives— public international law vis-à-vis domestic law.

From the standpoint of public international law, there is no distinction between a treaty and an international agreement. Article 2(1)(a) of the Vienna Convention on the Law of Treaties (VCLT), which the Philippines is a party to, defines “treaty” as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” Therefore, regardless of the nomenclature and the mode by which a state gives its consent to be bound, the obligation to fulfill the provisions of the treaty exists between the contracting parties.

Consequently, under this perspective, should the United States insist on enforcing the EDCA against the Philippines, the latter cannot invoke the argument that the EDCA is against its constitution (should the court have ruled differently). Article 27 of the VCLT states that, “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.” Although, the Philippines may argue that matters of the President’s power to make international agreements in relation to foreign bases and national security is of fundamental importance.

On the other hand, in domestic law, there is a difference between a treaty and an executive agreement. Justice Leonen in his dissent cites Commissioner of Customs v. Eastern Sea Trading[2], where the Court differentiated the two by determining the subject matter covered by and the temporal nature of the agreement—

International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.

With this in mind, the main opinion in the EDCA case has made a landmark pronouncement—that the President has a prerogative of choosing if an international agreement is merely an executive agreement or a treaty subject to Senate concurrence. This declaration, I believe, is very dangerous. This does not only give the President undue power, but it shifts the focus from the substance of the agreement to simply its source. The President is free to choose which option is most advantageous to him politically, and the Court simply has to determine whether this choice meets the necessary standards. A professor of mine pointed out that had the President Aquino submitted the EDCA to the Senate, the likelihood of it being ratified nil as Aquino has made enemies of many of the senators.

Justice Carpio proposes that to answer this question, one must apply the fundamental rule in treaty interpretation where the treaty must be interpreted “in light of its object and purpose”, as embodied in Article 31(2) of the VCLT. In his separate concurring opinion, Justice Carpio went to the lengths of discussing the necessity of the EDCA as a means to implement the Mutual Defense Treaty (MDT) using the present threat of China’s hostilities against the country. This, however, seems to border on the question of policy— whether the Philippines is in need of American military assistance in case of an all-out war. It was more appropriate for Justice Leonen to point out that the EDCA cannot be treated as an executive agreement implementing the VFA (which affirms the two countries’ obligations under the MDT) as the EDCA deviates significantly from the VFA.

Another issue which made me do a double-take was the Court’s interpretation of Section 25, Article XVIII of the Constitution[3]. The Court expressed that this provision pertains to “initial entry”, and hence, no longer applicable to foreign military bases, troops, or facilities that are already in the country. Thus, the EDCA does not violate the constitution because, siding with the Solicitor General, it is merely an executive agreement that enforces the Visiting Forces Agreement (VFA), and the military activities and facilities were authorized entry by the treaty [VFA]. I agree with Justice Leonen when he argues that Section 25 does not define the “extent and scope of the presence of foreign military bases, troops, or facilities, thereby justifying a distinction between their initial entry and subsequent activities.” It is a rule in statutory construction that if a law does not distinguish, we do not distinguish. Ubi lex non distinguit nec nos distinguere debemos. Besides, by making the distinction it discounts the important historical antecedents from which that specific provision draws its spirit.

My professor offered the view that the reason why it seems the Court “bent over backwards” in quest to uphold that the EDCA is an executive agreement that did not require Senate concurrence is that it made a conscious effort to reconcile the seemingly opposing systems of public international law and domestic law, taking into consideration Section 2, Article II of the Constitution where the Philippines “adopts the generally accepted principles of international law as part of the law of the land”. The Court tried to harmonize the EDCA with the Constitution whenever possible. This effort is nothing to object had the Court not stretched its reasoning to the point where one begins to question whether there are political motivations involved.

It is not to say that the EDCA is detrimental to the Filipinos. Rather, as Justice Brion in his dissent puts it, it is questionable whether “an executive agreement is the proper medium for the matters covered by the EDCA”. I see no legitimate reason why the EDCA should not be submitted to the Senate for concurrence if true democracy should reign. Critical matters such national security and foreign affairs concerning military intervention by other states should not be left to the discretion of one person. This was what the framers of the 1987 Constitution tried to prevent when they included provisions limiting the President’s awesome executive power. As Justice Brion points out, the EDCA may simply be “constitutionally deficient” and may still be remedied through Senate ratification. Constitutional mandates should not be side stepped simply because there is a perceived need and the present administration has weak political clout. We have gone a long way from being colonial subjects to free citizens, and our forefathers have given up their lives to give us independence that we have today. The Constitution is product of their sacrifice. Let us not squander their efforts in an instance of fear.

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[1] Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

[2] G.R. No. L-14279, October 31, 1961

[3] Section 25. 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 the 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.

EDCA: Senate concurrence not a factor.

               "Para kayong mga birhen na naniniwala sa pag-ibig ng isang puta!" The very statement that Justice Marvic Leonen quoted from Heneral Luna. Such statement was made after Justice Leonen disagreed with the constitutionality of the EDCA or the Enhance Defense Cooperation Agreement between the Philippines and the United States.

               EDCA’s primary purpose is to provide military support within our country in which they are allowed to establish military bases in certain location in the country that is agreed upon and as well as perform military exercises with the Armed forces of the Philippines within the period of 10 years. The Agreement, the Supreme Court stated, carries out provisions of previous agreements such as the 1951 Mutual Defense Treaty and the 1998 Visiting Forces Agreement. Which Justice Carpio stated that If the Mutual Defense Treaty cannot attain this purpose without the EDCA, then the EDCA merely implements the MDT and executive action is sufficient to make the EDCA valid.

               However some Justices disagreed with this, including Justice Leonen, which he argues that such agreement must concur with the senate before it becomes valid, which he stated the Provisions of Section 21, Article 7 and Section 25 Article 18 of the 1987 Consitution. He further contends that such agreement cannot amend treaties.

               Now the question rises, if an executive agreement is similar to an international agreement which falls under the Section 21, Article 7 which states that No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the senate. In the case of Comissioner of Customs vs. Eastern Sea trading, where in states that executive agreement does not need concurrence, “The right of the executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history, we have entered into executive agreements covering such subjects as commercial and consular relations, most favored nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of this has never been seriously questioned by our Courts. “. . . International agreements involving political issues or changes of national policy and those involving international agreements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail, carrying out well established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements”

               So in conclusion, the EDCA is an Executive agreement, since it does not technically provide a new national policy, but rather it just upholds and carries out the previous agreements and treaties regarding military forces in the country. Therefore, the EDCA is valid and does not need the majority vote of the Senate. And for me, it will help our armed forces drastically. Agree or not, We need all the help we could get, especially with the territorial disputes and with the rebels within our country. 

EDCA: Is there abuse if there is a need?

U.S. influence is very visible and very much present in the Filipino culture. It has a long-stemming origin and its effect can be very much felt up until today. As a simple proof of their influence being felt today is that I am writing this blog in English and it is because of the American’s influence over our education system. But once the topic of U.S. influence moves over to their military presence in the country the arguments become a little more heated as the country’s sovereignty, independence and freedom now becomes part of the debate.

                In a recent case brought before the Supreme Court, the constitutionality of the Enhanced Defense Cooperation Agreement or EDCA came into question as the seemingly never-ending debate about the military relationship between the United States and the Philippines is once again deliberated upon.

                The primary controversy that is being deliberated in the EDCA case is the use of an Executive Agreement which only needs the signature of the President to be effective, as opposed to a treaty where it would need the concurrence of two-thirds of the Senate which I believe is more representative of the stand of the people when it comes to the controversy at hand. As the Supreme Court clearly explained about the said issue is that the means to make the EDCA effective could have been made either by Executive Agreement or by treaty. And with that established the question of the effectiveness of the EDCA actually became a political one. By choosing to take the Executive Agreement route in the execution of the EDCA was there an abuse of power by the President in this issue. There would have been a clear drawback into choosing a treaty route in handling the concern has debate and deliberation would have taken a whole lot longer than an executive agreement since the opinion and stance of each senator would have been taken into consideration in order to execute the EDCA. But by choosing the executive agreement route the ever enviable Executive Power comes in full display and it does question the sentimentality of one person’s about the controversy at hand and does it represent the sentimentalities of the people he governs. I think that is the heart of the issue at hand here because obviously with the concern being discussed at the Supreme Court it shows that the people have different standing when it comes to this particular debate. My take on the issue is very much diverse. I do agree with the petitioners that a debate as lively as this issue brings the treaty route would have been less controversial, not in terms context of process but in a manner that the opinions of the Senators, as I expressly said earlier would have been more representative of the sentiments of the people as each one would have their take on the concern as opposed to an executive agreement which only expresses the motives of one person. But then again, as the Supreme Court puts it, the issue actually sits on a much bigger problem. The military presence of the United States in our country could be a favor to the country as we tackle on different issues that surrounds the state such as the China conflict in the West Philippine Sea, War on terrorism which our country is very much involved in and natural disasters such as typhoon Yolanda wherein we needed the help of the international community. The presence of the US military in the country gives us both a preventive and immediate solution when it comes to the other issues mentioned. Therefore my conclusion to this issue is that the procedural debate as to the effectiveness of the EDCA takes a backseat if we think about the benefits this agreement would possibly give us. And as for the issue of freedom and independence this issue brings forth, I believe that the US are not the bullies here but rather they are the big brothers who are here to help us whenever the need for help arises.

Source: Saguisag vs Ochoa, G.R. No 212426, January 12, 2016        

SC: EDCA, Not Unconstitutional

“While it is true that the Philippines cannot stand alone and will need friends within and beyond this region of the world, still we cannot offend our Constitution and bargain away our sovereignty.” ^[1]

After a series of re-schedulings, the Supreme Court (SC) declared the controversial Enhanced Defense Cooperation Agreement (EDCA) entered into by President Benigno Aquino III’s administration with the United States in light of China’s growing aggressiveness as an executive agreement and not as a treaty. ^[2] In a press briefing, the Supreme Court’s Public Information Office explained that the Court, ruling 10-4, sees the EDCA not as a treaty but as an executive agreement that “merely aims to implement” already existing treaties ratified by the Senate, namely, the 1951 Mutual Defense Treaty and the 1999 Visiting Forces Agreement (VFA). “As it is, the EDCA is not constitutionally infirm,” declared the Court. “As an executive agreement, it remains consistent with existing laws and treaties that it purports to implement.” ^[3] The SC disagreed with the Senate Resolution of Nov. 10, 2015, which insisted that the EDCA must be submitted to the Senate as a treaty for concurrence of two-thirds of its members. The SC noted that it was “not the instrument” that allowed US troops or facilities to enter the country; it was the VFA in 1999.

The focus of the present controversy, as mentioned by the SC is the application of Section 25, Article XVIII of the Constitution, which reads:

SEC. 25. 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 the 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.

Section 25, Article XVIII bans foreign military bases, troops, or facilities in Philippine territory, unless the following requisites are complied with: (1) the presence of foreign military bases, troops, or facilities should be allowed by a treaty; (2) the treaty must be duly concurred in by the Philippine Senate and, when Congress so requires, such treaty should be ratified by a majority of the votes cast by the Filipino people in a national referendum held for that purpose; and (3) such treaty should be recognized as a treaty by the other contracting party. ^[4]

The EDCA should comply with the constitution. Senator Miriam Defensor-Santiago said that the EDCA is a treaty and it must be submitted to the Senate for its ratification or rejection.  According to the Department of National Defense (DND), however, the EDCA is not a treaty but an “agreement to improve Philippine-US security cooperation,” i.e., an agreement that may be classified as a mere offshoot of the existing treaties between the Republic of the Philippines and the United States of America, namely, the Mutual Defense Treaty and the Visiting Forces Agreement (VFA).  Simply put, the DND considers the EDCA something akin to “more seasoning added to an existing recipe.”  On this score, the DND insists that the EDCA need not be submitted to the Senate. Assuming that the EDCA is not a separate treaty, it appears to be covered by the phrase “international agreement” contemplated by the Constitution.  After all, the EDCA is really an agreement—that is what the “A” in EDCA stands for—arrived at by Filipino and American leaders.   Unless the wordsmiths behind the EDCA can come up with a contrary argument, it seems that the Senate must have a say on the EDCA. [5]

In Bayan v. Zamora, the SC held that the VFA was a product of negotiations between the two governments relating to mutual security interests. Unlike the EDCA, however, the VFA was submitted to the Senate for concurrence. The EDCA does not simply implement the Agreement Between the Government of the United States of America and the Government of the Republic of the Philippines Regarding the Treatment of United States Armed Forces Visiting the Philippines (Visiting Forces Agreement or VFA). The EDCA substantially modifies or amends the VFA. An executive agreement cannot amend a treaty. Nor can any executive agreement amend any statute, most especially a constitutional provision. ^[5] The Senate, by a 15-1-3 vote, declares that EDCA is a treaty, therefore requiring its concurrence as mandated by the Constitution. However, the SC held that EDCA is just a mere extension of the 64-year-old Mutual Defense Treaty. EDCA defines the terms for the use of “agreed locations” by US forces deployed on rotation as they help train Filipino soldiers. EDCA offers more than what the VFA or even the Mutual Defense Treaty provides. An amendment to the provisions of any existing treaty, whether the amendment consists of an addition, subtraction or modification of certain words or phrases, will necessarily require ratification anew by the Senate. 

In view of these, I agree with the four dissenting justices that EDCA is a treaty, which is distinct from the VFA. Hence, it must satisfy the requirements under Section 25, Article XVIII of the Constitution. It is a treaty, which requires Senate concurrence in order to be valid and effective. Without that concurrence, EDCA is "constitutionally deficient" and cannot be enforced.  As Leonen said, the majority decision "darkens the colors of what is left of our sovereignty as defined in our Constitution. The majority's take is the aftermath of squandered opportunity. We surrender to the dual narrative of expediency and a hegemonic view of the world from the eyes of a single superpower." The people must be reminded that there is no guarantee under EDCA that the US will instantly defend the Philippines from aggression or take its side in territorial disputes.

              While it is true that we need the force and strength of the US Forces, as we are third world country, but we must also consider that the Constitution is the supreme law of the land.

[1] Associate Justice TERESITA J. LEONARDO-DE CASTRO; Concurring and Dissenting Opinion

[2] http://kickerdaily.com/supreme-court-edca-legal-not-unconstitutional/

[3]http://opinion.inquirer.net/92043/china-blasts-supreme-court-ruling-on-edca#jxzz3xumo3Hka

[4] BA YAN (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623, 654-655 (2000).

[5]http://manilastandardtoday.com/opinion/columns/the-scrutinizer-by-victor-avecilla/147747/legal-problems-surrounding-the-edca.html

What EDCA Really Means for the Philippines

As history would tell us, the United States of America has occupied the Philippines essentially by using deceit and lies. The Filipinos, who were then yearning to be free from the Spaniards, were enticed by the Americans with their promises of independence and sovereignty. Emilio Aguinaldo himself fell victim to the flowery words being thrown at him by the Americans. Little did we know, however, that America was already negotiating with Spain behind the scenes to gain control over our country. Fast-forward to today and here we are having yet another agreement, which may be detrimental to our country’s hard-fought sovereignty, with the same country who once deceived us. An agreement known as the Enhanced Defense Cooperation Agreement or EDCA. 

EDCA is a 10-year military agreement between the Philippines and the U.S. that allows the latter to rotate troops into the Philippines for extended stays. It allows the Americans to build and operate facilities on Philippine bases, for both American and Philippine forces. It is also said that the agreement will help boost the country's defense capability against external threats such as the fast-expanding Chinese presence in disputed parts of the West Philippine Sea. And lastly, it is also believed that the government's humanitarian and relief assistance capabilities will definitely be strengthen with the help of EDCA. 

With all these benefits that EDCA promises, one would surely believe that it may indeed be the solution in promoting peace and security in our country. However, a deeper analysis of the terms and provisions of the agreement would tell us how it serves the best interest of the Americans and not ours. It may have marginal advantages for our country but the major advantage will definitely be gained by America. For one, EDCA promises to help in building our country’s defense, yet it does not commit the U.S. to spend in its modernization. It is the Philippine government that will cover the expenses on the upgrading of former U.S. military infrastructures as well as the building of new ones in new sites for the use of U.S. troops. In other words, it is us, the Filipino people, who will be spending for the use and stay of U.S. troops in our facilities. The agreement also increases the number of U.S. military troops in our country and allows them access to all AFP or PNP camps all over the country. Should they commit crimes or violate any Philippine law, they are given protection and special treatment under the terms of the VFA and the EDCA. One good example of this is the killing of Jennifer Laude by Lance Corporal Joseph Scott Pemberton, who received special treatment after being convicted. Lastly, it is also believed that EDCA is mainly motivated by the US strategic re-balancing towards Asia and is therefore in the service of US security and economic interest.

Aside from the fact that the EDCA can be disadvantageous to the Philippines, it also violates our Constitution and, most importantly, undermines our country’s sovereignty as pointed out by the four Supreme Court justices who dissented the Supreme Court’s affirmation of the constitutionality of EDCA. Even constitutionalist, Sen. Miriam Defensor-Santiago stated that a treaty such as the EDCA requires the concurrence of the Senate before it becomes a law. It also violates the constitutional bar to the establishment of U.S. military bases in the country. I acknowledge the fact that the Philippines may not be able to stand alone and will need allies, but that should not be a reason for us to give away our sovereignty and transgress our very own Constitution. Just like what Justice Brion said on his dissenting opinion, “To accord a lesser respect for our own Constitution is to invite America’s disrespect for the Philippines as a co-equal, sovereign and independent nation.” Let us continue the fight to scrap EDCA before our beloved country is turned to a mere U.S. military base. Let us not let history repeat itself.

Constitution: Supreme Law of the Land

EDCA is an agreement between the government of the Republic of the Philippines and the government of the United States on enhanced defense cooperation; whereas, such agreement deepens defense cooperation between the parties. On one hand, wherein, majority has agreed and praised such agreement on the basis that it assures us the assistance it suggests, and such, “will effectively upgraded our own security system” as Vice President Jejomar Binay asserted. However, amidst of the concurring opinions of many of our fellow Filipinos regarding such agreement, this agreement is contrary to certain constitutional provisions; and this should not be disregarded because our Constitution is the supreme law of the land.

Such constitutional provisions are Art. 18, Sec. 25 “Foreign military bases, troops, or facilities, shall not be allowed in the Philippines, except under a treaty duly concurred in by the Senate…” Art. 7, Sec. 21, “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” And Art. 2, Sec. 8,  “The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.” So the issue here is whether EDCA violates our Constitution.

In the decision of the Supreme Court on the question of the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States of America, EDCA is not constitutionally infirm.  However, I disagree with the decision of the Court, hence, it further reiterated that they must view the instant case with the same perspective and understanding, knowing full well the constitutional and legal repercussions of any judicial overreach; I believed they have lacked of it. It is clearly manifested that EDCA is an executive agreement, and we must conform to what is written in our Constitution. To differentiate the two, treaties are formal documents which require ratification with the approval of two-thirds of the Senate, while Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress.

To end my paper, I would like to quote Senator Miriam Defensor-Santiago, “Filipinos should keep uppermost the supremacy of the Philippine Constitution.  We should not accommodate any foreign power at the cost of the sovereignty of our Constitution, even if the problem is presented as if it were a problem of national survival.” Therefore, democracy is motivated by the conformity of our will to law as such, we should always argue with legal standing albeit the aids it can avail, because eventually, supremacy law will always be reiterated. “Our Constitution is the supreme law of the land, and state courts shall be bound thereby. And when one of such procedures, laws, acts directly violates the constitution it is rendered unconstitutional.”

EDCA: Another Manifestation of Continued Dependence to the United States

American Military presence in the Philippines had long been a heated issue through the years. Our military cooperation with the United States has taken different forms namely the Mutual Defense Treaty during the 1950's and the Visiting Forces Agreement during the late 1990's. But what exactly is the point of contention for the anti-US protestors? That American military presence in our country increases our reliance to the United States when it comes to the protection of our own country. 

The Enhanced Defense Cooperation Agreement (EDCA) is the recent version entered into by our government with the United States last 2014. It is envisioned to supplement the previous military agreements entered into by the two countries. But do the Philippines actually need to reinforce these agreements? Considering that the Philippines ordered the removal of the US military bases in Subic and Clark in 1991, the government should have in the course of 25 years slowly eased out our military dependence from the Americans.

The government insists that the EDCA will only give the United States access to the agreed locations in local military bases and that the Philippines will benefit in the long run since the US as an ally will strengthen the capabilities for external and territorial defense. In my opinion, our continued need to join forces with the US Military will hurt the Philippines in the long run because such alliance will be taken against us by other countries specifically China. With our on-going maritime dispute in the West Philippine Sea, the military presence of the US in the contested territory may aggravate the Chinese military to be more aggressive and relentless in bullying our military forces in the area once the implementation of the EDCA is on full force. 

Another argument is the constitutionality of the EDCA which the protestors insist that EDCA is not constitutional as it was signed without prior Senate approval. However, in the recent decision of the Supreme Court which ruled that the EDCA is in fact an executive agreement between the two states and does not need a Senate approval to implement. Bearing in mind that an executive agreement does not need the consent of the Senate, the Philippines government especially the President should not easily agree to let another country use our military facilities for the reason of strengthening our mutual alliance. Military assistance should be given freely and voluntary by another country and not under the premise of an executive agreement between two states.  

With all things considered, whether the EDCA is constitutional and ready for implementation, the Philippines should have not entered into a renewed agreement with the United States in terms of increasing US military presence in our country. Our priority should be to strengthen our troops and modernize their equipment without the external assistance from our allies. While it is true, that in times of need our country would need our friends but the Philippines should be a strong and independent archipelagic state who is able to defend our country at all times. 

Short cut is not allowed

The Supreme Court and Malacanang have the same stand with regards to the Enhanced Defense Cooperation Agreement being an Executive Agreement which only amends the previous treaty, thus, does not need the concurrence of the Senate. There is nothing to contend about the requirements for an Executive Agreement and that the President has the power to enter into an agreement with foreign states. But let us have a closer look on what our Constitution requires when it comes to the agreement between the Philippines and the United States concerning the military activities.

Section 25 Article XVIII of our Constitution states that  “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the 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”. This should be interpreted with Section 21 Article VII which requires a treaty or an international agreement must be concurred in by at least two-thirds of all members of the Senate.

I do not agree with the Court's position that the Constitution only refers to the initial entry. If it is the purpose of the Constitution, it should have not stated the phrase "After the expiration in 1991" and should have clearly stated "initial entry". In my interpretation of the stated law, it is very clear that as long as the main concerns are the military activities, any agreement should enter in a form of treaty starting 1991 thus the law still subsists today.

Given with the situations that we are facing right now, there is no doubt that we need the help of a stronger country such as the US. Obviously, our country cannot afford what US can provide for us, but we also have to follow what the Constitution requires. We have to follow the process.

If we want to have an improved military defense with the help of the US, the EDCA, which was initiated in 2014, should have entered as a treaty and not as an Executive Agreement so it would have been in accordance with our Constitution. In Bayan Muna v. Romulo, the court explained that an executive agreement that does not require the concurrence of the state for its ratification may not be used to amend a treaty, that under the Constitution, is the product of the ratifying acts of the Executive and the Senate. Therefore it cannot be justified that the EDCA, being an executive agreement, can amend the previous Philippine-US treaty concerning military troops, bases, or facilities.

I am aware of the urgency and entry of EDCA as a treaty might take longer time for approval but I believe that EDCA is unconstitutional being violative of Section 25 Article XVIII in relation to Section 21 Article VII. We have to be faithful to our Constitution. It is the supreme law of the land. The Constitution should prevail over the needs and urgency. We have to follow the process and there should be no short cut. 

EDCA: Whether or not an Executive Agreement

EDCA: Whether or not an Executive Agreement

The Enhanced Defense Cooperation Agreement (EDCA) was signed by the president on June 6, 2014. [1]EDCA is an agreement between the Philippines and the US for the implementation of Philippine-US Mutual Defense Treaty (MDT), which authorizes the US military forces to have access to and conduct activities within certain agreed locations in the Philippines. It was not transmitted to the Senate because it was understood by the Executive that there was no need to do so. However, after the signing of the agreement, two petitions for certiorari were raised assailing the constitutionality of EDCA. The petitioners argue that it should be in the form of treaty concurred in by the Senate and not an Executive agreement.

Let us first analyze the difference between an executive agreement and a treaty. A treaty is when an agreement involves changes in the Philippine National Policy and the agreement must therefore be submitted to the Senate for ratification. While the executive agreement merely implements an already existing treaty obligations, laws, or policy and does not need the concurrence of the Senate. [2]Sec 17, Art VII of the Constitution states that the president has the duty to ensure that laws are faithfully executed. In this provision, the president has the responsibility and prerogative to guarantee the welfare of its nation especially in territorial disputes. But the exercise of rights of the Executive must strictly adhere to our laws. [3]Sec. 25, Art. XVIII of the 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…” this phrase from the Constitution is the matter raised by the petitioners in GR No. 212426 making the agreement unconstitutional. However, the court proved otherwise. In order to prove that EDCA is an executive agreement, it must involve an existing treaty. In this case, the Enhanced Defense Cooperation Agreement was a mere implementation of the pre-existing treaties of Mutual Defense Treaty (MDT) in 1951 and Visiting Forces Agreement (VFA) in 1991. [4]According to the case involving the constitutionality of EDCA, it was explained that during the existence of VFA our government allowed the initial entry of the foreign military bases, troops or facilities. VFA also involved the so called “Balikatan” exercises between Philippine-US military troops which proves that the treaty of VFA allowed the US military troops to enter in our defense territories. Therefore, EDCA is an executive agreement because it does not pertain to a treaty wherein there’s a change in the policy of our nation especially relating to national defense. The agreement merely enforces the pre-existing treaties of VFA and MDT which was duly ratified by the Senate.

The agreement will be advantageous to our country because US is one of the developed countries. The agreement gives us a helping hand in our military defense in protecting our territory and improving our defense mechanism against enemy states. The court correctly upheld the decision in the constitutionality of EDCA because it was clearly explained in the jurisprudence the concrete reason why the president did not seek for the concurrence of the Senate. An executive agreement, implements an already existing obligations, laws, or policy and does not need the concurrence of the Senate. Therefore, the president did not gravely abuse his discretion when he entered into an executive agreement with the United States.

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[1] http://newsinfo.inquirer.net/597859/what-is-the-enhanced-defense-cooperation-agreement-and-what-does-it-mean-for-ph

[2] Sec. 17, Art. VII, Constitution

[3] Sec. 25, Art. XVIII, Constitution

[4] GR No. 212426

EDCA for Big Bullies: Constitutional or not?

China poses as a huge threat to the safety of many Filipinos in the advent of the territorial dispute in the West Philippine Sea. With continued threats, the Philippine government urges to take a step into protecting its right and its people.

As the Philippines beefed up its external security, Edca ("Enhanced Defense Cooperation Agreement") formerly known as Increased Rotational Presence Framework Agreement has been set into motion. This agreement between the PH and US Gov't desires to strenghten international and regional security and the furtherance of the Mutual Defense Treaty 1951 and the Visiting Forces Agreement 1998 raising speculation on the Presidential use of power over a prohibited treaty as per the constitution without Senate approval by which was diminished by the High Court in the present day stating that it was not a treaty but rather an implementing agreement of the VFA.

However, it is written in the constitution, Article 18 Section 25 that "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 inder a treaty duly concurred in by the Senate and, when the 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 contradicting State."

Althought that is the case, Malacañang insists that it is only an executive agreement thus, it does not need senate concurrence. Sen. Miriam Defensor-Santiago begs to differ, contradicting the Court's claim that Presidential Power included the authority to enter into executive agreements such as the Edca insisting that Senate Concurrence is needed for Ecda to come through.

In my opinion, the Senate should push through with its concurrence for the constitution demands so. It is not whether or not the President is in his right to power but what is in question here is the power the consitution has serving as the basis of all laws. If the constitution had not been followed in this case, it is considerable that there might be other discrepancies with the agreement in the latter considering that Edca has a ten year term. Not only that, it has to undergo a process if it is that worthy to breech the word of law specially the Philippine Consitution.

The Republic of the Philippines is in great need of help and the United States of America offers a helping hand despite the challenges both may face in the foreseeable future. As for the great gesture, everything has to undergo a process that will in turn ensure smooth sailing honoring the highest law of the land, the constitution.

EDCA, Constitutional or not?

There is less than one year left before our President’s term ends. Regardless of the time left, he still is not safe from the issues haunting such high position being the Chief Executive and Commander-in-chief of our armed force. The latest issue is the international agreement, Enhanced Defense Cooperation Agreement EDCA. I am not a supporter of the Aquino administration but I think it is one of the things that they have done right.

In light of the petitions against it, the Supreme Court has recently decided on its Constitutionality. It was amazing to see how they were able to tackle on such a sensitive issue, an issue that may result in the violation of the powers of a co-equal branch of government. They have carefully explained how the power of the Executive is so broad but without the infringing on the Legislative’s, and without the Supreme Court violating the two.

Petitioners were contending that the agreement was against the Constitution regarding the presence of foreign military forces and that it should have been brought to the Senate for ratification.

They carefully tackled valuable aspects of the issue. They showed how the Executive and Legislative powers may overlap in this kind of matters of the state by explaining that the EDCA as an Executive Agreement, is not a treaty but rather an adjustment to it without violating the treaty itself. Because a treaty by its nature is an agreement by at least two states and gains a statute status after the concurrence of the Senate. They briefly discussed the historical relationship of the Philippines with the US, on how our military forces started out on helping each other. This brief discussion also showed how the present Constitution came into being and how it molded the different powers of the Executive and Legislative up to the present.

They have explained how important that the President, as the sole organ in conducting foreign relations, should be given broad discretion but still making sure that the sovereignty of the Filipino people is given paramount importance. Further explaining that these discretion should still be in consonance with what is mandated by our Constitution, that it is being able to exercise these powers together with that of Congress.

The Supreme Court had also explained how the President as the Commander-in-chief has the need to protect the people from any violence or attack, internal or external, that his duty is to make sure that our armed forces are always ready and better equipped to face anything that arises. But still these power is limited as it still needs the help of Congress.

The responsibility of the Supreme Court is not an easy task especially in questions of Constitutionality and those which involve the powers of the other two co-equal branches, that they should be able to separate Political questions with Judicial ones. Here is one of the examples that they have managed to do it.