Oral arguments versus EDCA


The Supreme Court heard oral arguments yesterday on why the Enhanced Defense Cooperation Agreement is unconstitutional. There were five petitioners who argued: Former Senator Rene Saguisag, who made opening statements; Dean Pacifico Agabin who discussed issues of justiciability and standing; I discussed the crux of the petition, that is that EDCA allows the presence of foreign troops and facilities without a Treaty duly concurred n by the Senate; Rachel Pastores who argued that EDCA is for all intents and purposes, a bases agreement; and Evalyn Ursua who discussed all other issues.

The hearing took almost four hours with questions from Justices Bernabe, Leonen, Carpio, De Castro, Perez and Chief Justice Sereno.

The most asked question was whether instead of declaring the EDCA as unconstitutional, the court could order the President to transmit it instead to the Senate for concurrence. Both Dean Agabin and I did not interpose any objection to this possibility. I did underscore though that since the language of the prohibition against the presence of military bases, troops and based is prohibitory in nature, the fact that EDCA is being implemented without compliance with the imperative condition that it be pursuant to a treaty concurred in by the Senate, this means that EDCA is null and void. I suppose the Justices were concerned that an outright declaration of unconstitutionality would affect our bilateral relations with the US and may prejudice the President’s power to deal with security threats in the country. I personally think that a referral of the EDCA to the Senate would mean a victory for the petitioners. This is because it is precisely our submission that foreign troops, bases and facilities could only be allowed pursuant to a treaty duly concurred in by the Senate.

Justice Carpio made a very interesting point. He said that while collective security treaties, such as the Mutual Defense Treaty, are legal, the US has breached its obligation to come to our defense twice : when China took from our possession both Mischief Reef and the Scarborough Shoal. He then asked me what advice I would give to the President relative to the west Philippine Sea dispute: I said, build our own defense capability, build alliances with out neighbors, or strengthen our ties with the US, among others. I answered all of the options except for strengthening our ties with the US since China already views us as a mere lackey of the US, I explained that with the billions of pesos that we have lost in PDAF and DAP, we could already afford the cost of modernizing our navy. I am unsure though until now what Justice Carpio was leading to since he ended his interpellation by observing that China has also been aggressive against Vietnam despite the latter’s staunch independent foreign policy.

Justice De Castro, a former State Counsel in the DOJ and former chair of the task force on jurisdiction when the US- Philippines bases agreement was still in force, asked why treaties have the force and effect of law. I responded that it was precisely because the legislature, through the Senate, gave its concurrence. She concurred and observed that the Senate needs to concur because the presence of foreign troops in our country normally requires a treaty to ensure that we can exercise criminal jurisdiction for non-service related offenses.

For his part, Justice Leonen inquired on the textual provision of section 21, Art. 8, which requires that treaties and international agreements require Senate concurrence. He asked me if I could make an alternative argument that EDCA is an international agreement that also requires Senate concurrence. I believe my answer to the question was that EDCA cannot be an international agreement because Sec. 25 of Art 18 applies specially to the presence of troops, facilities and bases in the country. Accordingly, the requirement is that the EDCA be in the form of a treaty. I’m not sure if I was correct in this assertion but the language of the Constitution appears to support my submission.

Atty Rachel Pastores, the most junior of the lawyers who argued for the petitioners, took a beating particularly from the Chief Justice who argued that we should give EDCA a try given that the AFP itself admits to short-term operation difficulties. In any case, Atty Pastores, despite the barrage of questions, stood her ground and invoked the duty of Filipinos to defend national sovereignty.

Asked by the media later if the questioning of the Justices was reflective of how they would rule, I had no problems in declaring that my experience has been that there is no correlation between the questions of the Justices and how they vote. I cited the example of the Chief Justice whose questioning in the oral arguments against the Cybercrimes Prevention Act appeared adverse to the petitioners. She later dissented and wrote an opinion declaring the law as unconstitutional.

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