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.