13 January 2016

EDCA prevails: SC rules, 10-4-1, US-PH defense deal constitutional

Recognizing the power of President Aquino to enter into an agreement with another country, the Supreme Court (SC) upheld yesterday the constitutionality of the Philippines-United States Enhanced Defense Cooperation Agreement (EDCA), paving the way for an expanded US military presence in the country.

Voting 10-4-1, the SC threw out the petitions filed by former senators Rene Saguisag and Wigberto TaƱada as well as militant lawmakers, Bayan Muna Party-list Reps. Neri Colmenares and Carlos Zarate, who all believed that the EDCA violates provisions on national sovereignty, territorial integrity and interests, freedom from nuclear weapons, and autonomy of local government units in the Charter.

In a news conference, SC Spokesman Theodore Te said that 10 magistrates voted to declare EDCA legal while four voted to declare it illegal. Justice Francis Jardeleza, who was the solicitor general when the EDCA was signed, had inhibited from the case.

The High Tribunal agreed with the respondents that the EDCA only intended to implement an existing law or treaty such as the Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA).

The SC also disagreed with the position submitted by the Senate that the landmark US-Philippines agreement, which was inked on April 28, 2014, should require the concurrence of at least two-thirds of all the members of the Senate.

“As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with existing laws and treaties that it purports to implement,” read the SC decision penned by Chief Justice Maria Lourdes Sereno.

Those who disagreed with the majority decision were Justices Arturo Brion, Teresita Leonardo-De Castro, Estela Perlas-Bernabe, and Marvic Leonen. Of the 4, Leonen and Bernabe are appointees of President Aquino.

Under the EDCA, the Philippines will allow US troops, planes and ships increased rotational presence in Philippine military bases and for Washington to build facilities to store fuel and equipment here.

Philippine officials said that the agreement is designed to promote between the two ally countries the following: Interoperability, Capacity building towards AFP modernization, Strengthening AFP for external defense, Maritime Security, Maritime Domain Awareness, Humanitarian Assistance and Disaster Response (HADR).

The enhanced defense deal, however, does not authorize the establishment of American military bases.

It also gives Philippine personnel access to American ships and planes.

“The agreement is very clear on this matter and specifies in the Preamble the parties’ understanding for the US not to establish a permanent military presence or base in the territory of the Philippines. The EDCA does not authorize the establishment of US bases. It allows the US military access to agreed location,” it said.

The agreement was signed against the backdrop of the Philippines’ maritime dispute with China over the West Philippine Sea (South China Sea), and America’s commitment to come to its ally’s defense in case this escalates.

Proponents say the deal aims to help build the capacity of the Philippine military, one of the weakest in Asia.


But the petitioners argued that EDCA is a treaty and not merely an executive agreement as the Aquino administration has claimed.

Because of this, the groups said the EDCA violates Section 25, Article XVIII of the Constitution, which requires that any foreign military bases, troops or facilities “shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate.”

But the government, through Solicitor General Florin Hilbay, has argued that EDCA is a valid executive agreement that could stand even without the concurrence of the Senate.

The SC, for its part, ruled that the EDCA is not the instrument that allows US “troops or facilities” to enter since the VFA has already done that.

Also the SC recognizes the President’s power to enter into executive agreements (different from treaties) not requiring Senate concurrence has been well-recognized and long upheld by the Court.


In MalacaƱang, Presidential Communications Operations Secretary Herminio Coloma Jr. hailed the ruling, saying the SC decision “strengthens the strategic partnership between the Philippines and the United States.”

“This ruling boosts the on-going Armed Forces of the Philippines’ (AFP) Modernization Program and paves the way for upgrading our military equipment and capability for national defense as well as for humanitarian assistance and disaster response,” Coloma said.

“According to the President, one of the benefits of the EDCA would be to introduce the AFP to the ‘…most modern equipment… and have a generational leap in our abilities’” he added.


The United States also welcomed the SC ruling on the constitutionality of EDCA.

“The US welcomes the Supreme Court’s decision to uphold the Enhanced Defense Cooperation Agreement (EDCA), which will further strengthen the US-Philippine bilateral relationship,” the US embassy said in a statement.

It said EDCA is a mutually beneficial agreement that will enhance our ability to provide rapid humanitarian assistance and help build capacity for the Armed Forces of the Philippines (AFP).

“We look forward to working closely with our Philippine partners on the implementation of this agreement,” it further stated.

The PH-US defense pact was inked hours before President Barack Obama arrived in the country for a two-day state visit iin April 2014. It was signed by U.S. Ambassador Philip Goldberg and Defense Secretary Voltaire T. Gazmin.

The Philippine Department of Foreign Affairs (DFA) described EDCA as a “critical component of our efforts to enhance and strengthen national security and improve our humanitarian assistance and disaster response capabilities.”


One of the country’s foremost foreign affairs and economic analysts emphasized, however, that the Philippine government must make sure that the “expected spike in American boots on Philippine soil will not come at the expense of safety and welfare of our citizens, especially those who reside close to the bases.”

Prof. Richard Heydarian, of the De La Salle University in Manila Political Science Department, it is relevant for the Philippines to ensure “fair and balanced treatment for erring foreign troops, to ensure rule of law and uphold justice as well as protect civilian communities from ecological hazards that usually accompany deployment of massive military assets.”

“We must learn from our past experiences and not be solely concerned with China threat,’ said Heydarian in a text message to Manila Bulletin.

He said now that Manila and Washington have overcome “the constitutional hurdle which was by no means certain,” America can now move ahead with augmenting its military presence, albeit rotationally, in Subic and Clark, two major bases that embrace the bitterly contested West Philippine Sea (South China Sea).

“Our government hopes that this will serve as a latent deterrent against further Chinese provocations within Philippines’ exclusive economic zone (EEZ),” said Heydarian, who is also an expert of Asian geopolitics. “Expanded American military footprint in the area might give China a pause and a reason to rethink its revanchism but it may also very well encourage Beijing to dig and fortify its military-oriented structures and activities in the area.” (Leonard Postrado, with reports from Elena L. Aben, Roy C. Mabasa, Genalyn D. Kabiling, and Charissa M. Luci, Manila Bulletin)


‘THEY’RE STAYING’ — The ‘USS Topeka,’ a Los Angeles-class submarine, docks at the Alava Pier of the Subic Bay Freeport yesterday, while in Manila, the Supreme Court rules in favor of the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA), which allows such routine port calls and the use of Philippine port facilities by visiting US military forces. The SC decision drew protesters like this placard-bearing activist (inset) outside its offices in Manila. (Jonas Reyes and Kevin dela Cruz, Manila Bulletin)

Read More - http://www.mb.com.ph/edca-prevails/