The Sol-Gen’s defense of EDCA


It was Florin Hilbay’s first appearance as acting Solicitor-General last Tuesday when he defended the Enhanced Defense Cooperation Agreement before the Supreme Court. Unlike petitioners who divided the issues identified by the Court amongst five speakers, Sol-Gen Hilbay defended EDCA alone. As a former Associate of Retired Justice Vicente Mendoza, it was expected that Hilbay would highlight what he probably thought were the insurmountable hurdles to justiciability.

On top of his argument was that none of the petitioners is an incumbent member of the Senate who is complaining that their discharge of their official functions, such as giving concurrence to treaties, was violated.

Outside of technical objections, Hilbay argued that the President’s decision to enter into the EDCA was an inherent discharge of his executive powers as chief architect of foreign relations. He also said that the President entered into the EDCA as part of the Chief Executive’s power to ensure the security of the public, especially against the threat of modern-day terrorism.

On the crux of the controversy, Hilbay argued that EDCA was a mere executive agreement which fixes the details of the earlier signed Mutual Defense Treaty and the Visiting Forces Agreement. He emphasized that the “pivot to Asia” was not a new policy but one that merely reallocates US forces into Asia. He highlighted that the EDCA, as an Executive Agreement, does not authorize the Americans to perform acts, which have not been previously authorized by both the MDT and the VFA. In fact, according to him, unlike the earlier Military Bases Agreement where the US bases were deemed to be the “extension of the territory of the United States, the EDCA does not authorize ‘extra-territorial’ exercise of jurisdiction.” According to him, under EDCA, the military bases shall continue to be part of Philippine territory and that the Americans cannot engage in any form of activity without the consent and approval of Philippine authorities. He emphasized that “operational control” of the Americans only applied to the construction of facilities, but Philippine authorities would have full control over all “agreed locations” where the US would be allowed to preposition defense equipment and supplies, as well as deploy troops on a rotational basis.

As to be expected, the Acting Solicitor-General had his baptism of fire. Justice Marvic Leonen was unrelenting in his queries. He started by discussing Article 7 of Article XIII of the Constitution and asked the same questions he asked of me: whether there ought to be a difference between a treaty and an international agreement, both of which require the concurrence of the Senate. Then he inquired on the prohibitory nature of Section 15 of Article XVIII and elicited Hilbay’s agreement to my position that the same is lex specialis. Where he differed is his assertion that Section 15 applies only to permanent bases and not to the presence of troops and facilities. The latter, he argued, were already within the coverage of the VFA.

Justice Leonen grilled Hilbay on the fact that in the case of Medellin vs. Texas, apparently, the EDCA does not have the force and effect of law under the laws of the United States. Under the case cited by Leonen, treaties can only have the effect and force of law in the US if the treaty itself is self-executory and if a statute implements it. In this regard, Hilbay insisted that the VFA has been declared constitutional at least three times in three separate petitions filed substantially by the same parties. He also said that Leonen’s reading of Medellin was the mere dissenting view of J. Antonio Carpio.

Leonen then compared the language of the EDCA and the rejected Military Bases Agreement of 1991. He noted that contrary to the position of the Sol-Gen, it appears that even under the rejected treaty, the Philippines also had the right to approve all activities of the Americans. This, in my mind, was a very strong point against the position taken by Hilbay as a comparison of the text of EDCA and the MBA would indeed show that Philippines has always maintained its right to approve all activities of the Americans in our territory.

Justice Carpio took the same stance as he did when I argued last week. He was able to get a concession from Hilbay that while the US has always had a treaty obligation to come to our assistance in case any of our islands are attacked, it refused to come to our assistance when both the Scarborough and Mischief Reef were forcibly taken from us by China. He agreed with J. Carpio that in reality, the EDCA ad the MDT are not guarantees that the US will come to our assistance should our islands in the West Philippines Sea be attacked by China, simply because the US has always taken the stand that they “do not take sides in the on-going island disputes” in the West Philippines Sea.

Justice Teresita De Castro, for her part reiterated that Senate concurrence is necessary if we are to exercise jurisdiction over US military personnel. She noted the country’s generosity when we agreed that the US can use our facilities free of rent.

The parties were then given 20 days from Tuesday within which to file their respective memorandum. After which, the Court is expected to rule on whether the petitioners were successful in proving “grave abuse of discretion” when the President entered into the EDCA.

It’s not fun to be a columnist and an advocate. You’re dying to take sides and should not. Darn!

This post first appeared in http://manilastandardtoday.com/2014/11/28/the-sol-gen-s-defense-of-edca/.

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