EDCA, What Can We Expect? By Erick San Juan
Once again the Supreme Court’s decision on the petition against the Philippines' Enhanced Defense Cooperation Agreement (EDCA) with the US was deferred November 16. It was reset to December 16 or thereafter.
It was reported at Manila Times (November 8) that “the Supreme Court (SC) is poised to declare the controversial Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States constitutional, according to unimpeachable sources.
The Manila Times has gathered from several sources that an 82-page draft decision upholding the constitutionality of the defense agreement had been circulated among the 14 magistrates. The ponente of the case is Chief Justice Maria Lourdes Sereno.
In her draft decision, Sereno said EDCA is “not constitutionally infirm,” the sources told the Manila Times. According to the decision, President Benigno Aquino III, as head of the executive department, has the power to sign agreement on matters of foreign affairs and national security.
An overwhelming majority of the justices are inclined to agree with Sereno since no dissenting opinion had been issued.
Some of the justices who do not see eye to eye with the Chief Justice, however, are waiting for a magistrate to issue a separate opinion concurring with the constitutionality of EDCA and they will favor that opinion so that Sereno will not gain credit from President Aquino because she is the ponente of the case.
A source said CJ Sereno circulated her draft decision days before the holding of the Asia-Pacific Economic Cooperation (APEC) to please Malacañang and gain 'pogi' points [credit] from the President. The EDCA decision is seen to be the Philippines’ “gift” to US President Barack Obama, who will be flying this week in Manila to attend the APEC summit scheduled from November 17 to 19.”
What went wrong (or right)? Well, the Senate did the right thing through Senator Miriam Defensor-Santiago together with the other 14 senators, adopted Sen. Santiago’s resolution expressing the strong sense of the Senate that, absent their concurrence, the Enhanced Defense Cooperation Agreement (EDCA) is a treaty prohibited under the Constitution.
Beside Santiago, those who voted in favor of the resolution were Senators Sonny Angara, Nancy Binay, JV Ejercito, Chiz Escudero, TG Guingona, Lito Lapid, Loren Legarda, Bongbong Marcos, Serge Osmeña, Koko Pimentel, Grace Poe, Ralph Recto, and Cynthia Villar. The 15th vote came from Sen. Pia Cayetano, who was not at the session hall during the vote, but later manifested that she is voting in the affirmative.
Plenary approval formalizes Senate Resolution No. 1414 as the Senate’s position on the question of the validity and effectivity of the EDCA. Only Sen. Sonny Trillanes voted against the resolution, deferring to the Supreme Court. Under the same premise, Senate President Frank Drilon and Sen. Juan Ponce Enrile abstained. Sen. Bam Aquino, who was not in session during the vote, later manifested his abstention.
In her sponsorship speech, Santiago, chair of the Senate committee on foreign relations, argued that the EDCA “belongs to the category of prohibited treaty. Namely, it is a treaty of foreign military bases, troops, or facilities without the concurrence of the Senate.”
Santiago, the foremost constitutional expert in the Senate, insisted that “other than concurrence of the Senate, no authority expressly transforms a treaty into law.” She cited the Treaty Clause of the Constitution, Article 7, Section 21, 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."
The senator added that the need for Senate concurrence was made an integral part of the nature of a special kind of treaty—that which involves “foreign military bases, troops, or facilities”—by the Constitution, Article 18, Section 25:
.… foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate.… and recognized as a treaty by the other contracting State. (Emphasis added)
Santiago said the EDCA falls under this prohibition, as it had substantive provisions on the establishment, location, stationing of the U.S. military forces and storage of military facilities in Philippine territory.
“That such a prohibited ‘treaty’ has been concluded by the Executive Department as an executive agreement testifies to its inherently prohibitory nature under the Constitution,” the senator added.
She further claimed that the prohibitory character of Article 18, Section 25 trumps Article 8, Section 4(2), which Macalañang used to defend the EDCA as an executive agreement. The Constitution, Article 8, Section 4(2), states that:
All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc…. shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.
“On the remote assumption that this provision may be applicable to a case involving the constitutionality of a treaty or executive agreement, it must exclude from its applicability the prohibited treaty as described in the Constitution, Article 18, Section 25,” Santiago said. These articles of our constitution are legal matters that are all binding.9
The Senate statement on EDCA comes a week before U.S. President Barack Obama’s expected arrival in the Philippines for the Asia-Pacific Economic Cooperation (APEC) meet.
The senator added that she hopes the Supreme Court, to which she sent a copy of the proposed resolution in June, will consider the strong statement from the Senate “with decisive concern.”
Need we say more? Our congratulations to Sen. Santiago! Hoping that the SC decision come December will favor the Senate and let the Senate of the Philippines deliberate on the EDCA.
It's not the Americans fault per se but we really have to deal with them in a position of strength and level the playing field. Our colonial mentality should be redirected once and for all to get what's due us.
Once again the Supreme Court’s decision on the petition against the Philippines' Enhanced Defense Cooperation Agreement (EDCA) with the US was deferred November 16. It was reset to December 16 or thereafter.
It was reported at Manila Times (November 8) that “the Supreme Court (SC) is poised to declare the controversial Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States constitutional, according to unimpeachable sources.
The Manila Times has gathered from several sources that an 82-page draft decision upholding the constitutionality of the defense agreement had been circulated among the 14 magistrates. The ponente of the case is Chief Justice Maria Lourdes Sereno.
In her draft decision, Sereno said EDCA is “not constitutionally infirm,” the sources told the Manila Times. According to the decision, President Benigno Aquino III, as head of the executive department, has the power to sign agreement on matters of foreign affairs and national security.
An overwhelming majority of the justices are inclined to agree with Sereno since no dissenting opinion had been issued.
Some of the justices who do not see eye to eye with the Chief Justice, however, are waiting for a magistrate to issue a separate opinion concurring with the constitutionality of EDCA and they will favor that opinion so that Sereno will not gain credit from President Aquino because she is the ponente of the case.
A source said CJ Sereno circulated her draft decision days before the holding of the Asia-Pacific Economic Cooperation (APEC) to please Malacañang and gain 'pogi' points [credit] from the President. The EDCA decision is seen to be the Philippines’ “gift” to US President Barack Obama, who will be flying this week in Manila to attend the APEC summit scheduled from November 17 to 19.”
What went wrong (or right)? Well, the Senate did the right thing through Senator Miriam Defensor-Santiago together with the other 14 senators, adopted Sen. Santiago’s resolution expressing the strong sense of the Senate that, absent their concurrence, the Enhanced Defense Cooperation Agreement (EDCA) is a treaty prohibited under the Constitution.
Beside Santiago, those who voted in favor of the resolution were Senators Sonny Angara, Nancy Binay, JV Ejercito, Chiz Escudero, TG Guingona, Lito Lapid, Loren Legarda, Bongbong Marcos, Serge Osmeña, Koko Pimentel, Grace Poe, Ralph Recto, and Cynthia Villar. The 15th vote came from Sen. Pia Cayetano, who was not at the session hall during the vote, but later manifested that she is voting in the affirmative.
Plenary approval formalizes Senate Resolution No. 1414 as the Senate’s position on the question of the validity and effectivity of the EDCA. Only Sen. Sonny Trillanes voted against the resolution, deferring to the Supreme Court. Under the same premise, Senate President Frank Drilon and Sen. Juan Ponce Enrile abstained. Sen. Bam Aquino, who was not in session during the vote, later manifested his abstention.
In her sponsorship speech, Santiago, chair of the Senate committee on foreign relations, argued that the EDCA “belongs to the category of prohibited treaty. Namely, it is a treaty of foreign military bases, troops, or facilities without the concurrence of the Senate.”
Santiago, the foremost constitutional expert in the Senate, insisted that “other than concurrence of the Senate, no authority expressly transforms a treaty into law.” She cited the Treaty Clause of the Constitution, Article 7, Section 21, 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."
The senator added that the need for Senate concurrence was made an integral part of the nature of a special kind of treaty—that which involves “foreign military bases, troops, or facilities”—by the Constitution, Article 18, Section 25:
.… foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate.… and recognized as a treaty by the other contracting State. (Emphasis added)
Santiago said the EDCA falls under this prohibition, as it had substantive provisions on the establishment, location, stationing of the U.S. military forces and storage of military facilities in Philippine territory.
“That such a prohibited ‘treaty’ has been concluded by the Executive Department as an executive agreement testifies to its inherently prohibitory nature under the Constitution,” the senator added.
She further claimed that the prohibitory character of Article 18, Section 25 trumps Article 8, Section 4(2), which Macalañang used to defend the EDCA as an executive agreement. The Constitution, Article 8, Section 4(2), states that:
All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc…. shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.
“On the remote assumption that this provision may be applicable to a case involving the constitutionality of a treaty or executive agreement, it must exclude from its applicability the prohibited treaty as described in the Constitution, Article 18, Section 25,” Santiago said. These articles of our constitution are legal matters that are all binding.9
The Senate statement on EDCA comes a week before U.S. President Barack Obama’s expected arrival in the Philippines for the Asia-Pacific Economic Cooperation (APEC) meet.
The senator added that she hopes the Supreme Court, to which she sent a copy of the proposed resolution in June, will consider the strong statement from the Senate “with decisive concern.”
Need we say more? Our congratulations to Sen. Santiago! Hoping that the SC decision come December will favor the Senate and let the Senate of the Philippines deliberate on the EDCA.
It's not the Americans fault per se but we really have to deal with them in a position of strength and level the playing field. Our colonial mentality should be redirected once and for all to get what's due us.
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