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.
[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.
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