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