In an extensive ponencia, the Supreme Court dismissed the two petitions questioning the constitutionality of the Enhanced Defense Cooperation Agreement between the Philippines and the United States. Ten justices ruled that Edca is an executive agreement that does not require Senate concurrence while four Justices dissented.
To justify the ruling, the majority, penned by no less than Chief Justice Maria Lourdes Sereno, invoked Article 18, Section 25 of the 1987 Constitution which states that the President can enter into an executive on foreign military bases, troops, or facilities if (a) it is not the instrument that allows the presence of foreign military bases, troops or facilities, or (b) it merely aims to implement an existing law or treaty; holding that the Edca is one such executive agreement. On this premise, the Court posited that “the President had the power to enter into executive agreements, which are different from treaties. This is well-recognized and long upheld by the court”.
The Court further stressed that “The Edca provides for arrangements to implement existing treaties allowing entry of foreign military troops or facilities under the VFA and the [Mutual Defense Treaty], and thus may be in the form of an executive agreement solely within the powers of the President and not requiring Senate concurrence under Article XVIII, Sec. 25.” To the majority, Edca implements the provisions of the 1998 Visiting Forces Agreement and 1951 Mutual Defense Treaty.
The Court added that there is no court that can tell the President to desist from choosing an executive agreement over a treaty to embody an international agreement. “Rather” it said “in view of the vast constitutional powers and prerogatives granted to the President in the field of foreign affairs, the task of the Court is to determine whether the international agreement is consistent with the applicable limitations.” The President has the option to choose the form of an agreement other than through a treaty, provided that the agreement dealing with foreign military bases, troops or facilities is not the principal agreement that first allowed the entry or presence in the Philippines. Moreover, the executive agreement must be consistent with the Constitution, as well as with existing laws and treaties, it added.
The high court likewise stressed that the law requires Senate concurrence to a treaty and that an agreement can only be considered a treaty when it serves as an “instrument that allows the presence of foreign military bases, troops or facilities.”
Four (4) justices namely, Associate Justices Teresita Leonardo de Castro, Arturo Brion, Marvic Leonen, and Estela Perlas Bernabe dissented from the majority decision.
Justice Leonen begins his dissent with a quotation from the movie Heneral Luna, that famous phrase the national hero hurled at Pedro Paterno, Felix Buencamino, at Emilio Aguinaldo when they argued that the Americans in 1898 could be trusted to give us independence: “Para kayong mga birhen na naniniwala sa pag-ibig ng isang puta!
(“You are like virgins who believe that a prostitute loves you!”)
More technicaly, Leonen argues that the decision amended the Constitution, or at the very least, emasculated its text and weakened its spirit. Contrary to the holding by the majority, Leonen opined that the Edca does not simply implement but substantially modifies or amends the Visiting Forces Agreement, a treaty. Hence, Edca should be ratified by the Senate. Supporting his stance, Justice Leonen pointed out that Edca includes matters not contemplated in the VFA, including the temporary stationing on a rotational basis of US military personnel and their contractors; pre-positioning of military materiel; used by the United States to launch military and paramilitary operations to be conducted within our territory or against targets in other states. All these, and more, indicate that Edca is a treaty different from the VFA.
Echoing Leonen, Brion is also of the opinion that Edca is a treaty and not merely an agreement. To him, Edca should be in the form of a treaty as it brings back to the Philippines a) the modern equivalent of the foreign military bases whose term expired in 1991 and which Article XVIII, Section 25 of the Constitution directly addresses; b) foreign troops under arrangements outside of the contemplation of the visiting forces that the 1998 VFA allows; and, c) military facilities that, under modern military strategy, likewise can be brought in only through a treaty.
Interestingly, Justice Antonio Carpio wrote a concurring opinion that set forth the strategic logic of Edca. He points out: “China will think twice before attacking Philippine military re-supply ships to Philippine-occupied islands in the Spratlys. With the Edca, the Philippines will have a fighting chance to hold on to Philippine- occupied islands in the Spratlys. With the Edca, China will think twice before attacking Philippine navy and coast guard vessels patrolling the West Philippine Sea. This will give the Philippines a fighting chance to ward off China’s impending enforcement of its nine-dashed lines as China’s “national boundaries” as shown in its 2013 official vertical map.”
Personally, I am not necessarily against the United States having a military presence in the Philippines. I belong to the generation that ousted the military bases in 1992 and I am proud of that, but 2016 is very different from 1992. However, I am concerned that the decision unnecessarily expands executive power over foreign policy. Justice Carpio’s argument for Edca as justified by our need to have a military alliance with the United States against China reinforces this concern. This is too important to leave only to the President; the people through its elected representatives must be involved in the decision.
In this sense, I agree with Justice Leonen’s observation: “There has never been a time in our history—and will never be a time in the future—when the national interest of the United States was subservient to ours. We cannot stake our future on how we imagine the United States will behave in the future. We should learn from our history. If we wish the United States to behave in a way that we expect, then our government should demand clear commitments for assistance to our primary interests. The likelihood that this will happen increases when agreements with them run through the gauntlet of public opinion before they become effective.”
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