The Supreme Court scheduled oral arguments on the constitutionality of the Expanded Defense Cooperation Agreement on Tuesday, 18 November. The core issue for determination by the Court is whether the EDCA is a treaty, which allows the presence of foreign bases, troops or facilities in the country. If so, Sec 25, Art VIII of the 1987 Constitution requires that it be in the form of a treaty, duly concurred in by a 2/3 vote of all the members of the Senate; duly recognized by the other contracting party as such; and when so required by the Senate, duly ratified by a majority vote of the people in a referendum called for the purpose.
The controversy, on the basis of the pleadings submitted by the parties, is not whether the EDCA allows the presence of troops and facilities in the country as it clearly does. What is at issue is whether as claimed by the government, the EDCA is a mere implementing agreement of the Mutual Defense Treaty of 1951, which was duly concurred in by the Senate, and by the Visiting Forces Agreement, whose constitutionality has been upheld twice by the Supreme Court.
Similar to what I have done prior to the oral arguments on the constitutionality of the Cybercrimes Prevention Act which resulted in a draw decision with both petitioners and the state claiming partial victory, I will detail the thrust and parry of the parties on the seminal issue of whether EDCA requires Senate concurrence.
Petitioners submit that it does because EDCA implements a new national policy. In the case of Commissioner of Customs vs. Eastern Shipping, the Court ruled that treaties that need to be submitted for concurrence by the Senate are those that formulate a new policy. Those that merely implement existing ones or fix the details of existing ones do not require concurrence.
Why do petitioners claim that EDCA is a new policy? Because it makes the Philippines a partner of the United States in a new defense policy that has since rendered permanent US bases outside of its mainland unnecessary. This policy represents a radical departure from previous US defense policy anchored on the existence of permanent US bases in strategic parts of the world. Under this new policy, US Defense Undersecretary for Policy Douglas J Feith explained, “We are not talking only about basing, we’re talking about the ability of our forces to operate when and where they are needed.”
This policy is based not just on a major shift in strategic priorities, but also on economics. Simply put, the new policy is because the US can no longer afford the economic and political costs of permanent bases.
Moreover, it also forms part of a new US policy that has been described as a “pivot to Asia”. Under this scheme, the US will redeploy most of its naval resources into Asia. Currently, its existing naval presence is evenly split between the Pacific and Atlantic oceans.
Government, on the other hand, argues that Senate concurrence is not required because the EDCA is a mere implementing agreement of the Mutual Defense Treaty of 1951 and the Visiting Forces Agreement. Specifically, Acting Solicitor General Florin Hilbay argued that the EDCA, insofar as it authorizes temporary rotational presence of troops and pre-deployment of military supplies and facilities, merely implements the duty of the Philippines to improve its capacity and readiness under the Mutual Defense Treaty. The activities of US troops, on the other hand, according to the OSG, are mere restatements of the “activities” authorized to be undertaken by the Americans under the Visiting Forces Agreement.
Other issues up for argumentation include the issue of whether the EDCA authorizes the establishment of permanent US bases in the country. Petitioners will argue that given the scope and breadth of what the Americans can do outside of Philippine jurisdiction as specified in the EDCA, coupled with the fact that the agreement maybe be permanent since it is automatically renewed every ten years, that is its tantamount to permanent basing. Government will argue that it is temporary and falls under the scope of the VFA.
Other issues such as whether petitioners have the standing to sue (since none of them is an incumbent senator) and whether there is an actual case or controversy will also be discussed. Additionally, the dispute settlement procedure of the agreement is also up for discussion since Petitioner alleges that this infringes on the exercise of judicial powers, which falls within the exclusive jurisdiction of our courts.
The oral arguments will happen amidst the controversy created by the murder of the Filipino transgender, Jennifer Laude allegedly perpetrated by a US serviceman, Joseph Pemberton. Already, the murder case has put into serious doubt the compatibility of all existing agreements that we have authorizing the presence of foreign troops and facilities in the country with Philippine sovereignty. At the core of the controversy in the Laude case is the apparent failure of the Philippines to exercise jurisdiction over the person of the suspected murderer who remains continuously under US custody.
Clearly, the arguments to be heard this coming Thursday will go beyond whether the Senate concurrence is required for the EDCA. Unwritten yet in bold script is the issue of whether any such agreement violates the exclusive exercise of Philippines sovereignty and jurisdiction, and whether these limitations, if any, redound to the national interest.
Clearly, the issues for determination are of transcendental importance to every Filipino. Be there if you can.
This post first appeared on http://manilastandardtoday.com/2014/11/13/thrust-and-parry-on-edca/