Senate of the Philippines. INQUIRER FILE PHOTO / EDWIN BACASMAS
THERE can be no Enhanced Defense Cooperation Agreement (Edca) without the approval of the Senate.
The Senate Tuesday took the position that the defense agreement between the Philippines and the United States was a treaty and thus invalid without its concurrence, adopting the resolution of Sen. Miriam Defensor-Santiago taking such a stand.
Aside from Santiago, those who voted in favor of the resolution were Senators Sonny Angara, Nancy Binay, Joseph Victor Ejercito, Francis Escudero, Teofisto Guingona III, Manuel Lapid, Loren Legarda, Ferdinand Marcos Jr., Sergio Osmeña III, Aquilino Pimentel III, Grace Poe, Cynthia Villar and Senate President Pro Tempore Ralph Recto.
Sen. Pia Cayetano was absent during the vote, but later manifested on the floor that she was in favor of the resolution.
Under Edca, the United States is granted greater access to Philippine military camps, including the construction of facilities and storage of defense supplies.
Fourteen senators voted in favor of Santiago’s resolution. Sen. Antonio Trillanes IV objected to it, while Senate President Franklin Drilon and Minority Leader Juan Ponce Enrile abstained.
The Senate action came amid reports that the Supreme Court was set to resolve Tuesday petitions challenging the constitutionality of Edca, which Malacañang insists is just an executive agreement and, thus, does not need Senate concurrence.
Contrary to a news report on Monday that predicted a favorable ruling for the government on Edca, the justices did not vote on petitions that sought to strike down the defense pact, according to sources privy to the en banc session.
The magistrates only held initial deliberations on Edca. The justices are again set to meet on Nov. 16 for an en banc session, before government offices go on a four-day break to give way to Manila’s hosting of the Asia-Pacific Economic Cooperation (Apec) summit.
A newspaper banner story reported that a decision written by Chief Justice Maria Lourdes Sereno was going to uphold Edca’s constitutionally, calling the unpromulgated ruling a “gift” for US President Barack Obama when he comes to Manila for Apec.
The ruling has been highly anticipated as it would seal the fate of the defense pact, signed as an executive agreement between Defense Secretary Voltaire Gazmin and US Ambassador to the Philippines Philip Goldberg in April last year, just before Obama’s overnight state visit to Manila.
Edca was signed as the United States pursued its strategic pivot to the Asia-Pacific and while the Philippines beefed up external security amid continuing threats over the unsettled disputes in the South China Sea, notably China’s military buildup in the waters.
Victory for Senate
“This is a victory for the Senate and it might also shadow, we don’t know in what way, the verdict of the Supreme Court,” Santiago told reporters after the vote in the chamber.
She said she was “very, very very happy. I feel like I can almost jump up and down.”
Santiago hopes the decision of the Supreme Court would coincide with the Senate resolution, a copy of which would be sent to the court. But if it does not, then two coequal branches of government would be on opposing sides on one issue, she said.
“Of course, we can’t overrule the Supreme Court, but neither can the Supreme Court overrule the Senate. So what will happen if you reduce it to the level of the ridiculous is that there will be two branches of government trying to outdo each other. We don’t actually do that in practice,” she said.
In case the Supreme Court rules that Edca needs Senate concurrence, Santiago said she would vote against the agreement.
In her sponsorship speech for the Edca resolution, she said the resolution up for approval was constitutional law.
“The strong sense of the Senate that it embodies is a confirmation of its supremacy over any self-serving speculation that is forced subjectively on the Constitution,” she said.
Two-thirds of senators
Santiago pointed to Article 7, Section 21 of the Constitution stating that no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.
She said the need for Senate concurrence was made an integral part of the nature of a special kind of treaty, one involving foreign military bases, troops or facilities, by Article 18, Section 25 of the Constitution.
The text of Edca is proof that it belongs to the category of a prohibited treaty, namely a treaty involving foreign military bases, troops or facilities without the concurrence of the Senate, according to Santiago.
Not a treaty
In opposing Santiago’s resolution, Trillanes said Edca was not a treaty, but an executive agreement to implement the Philippine and US’ obligations under the 1951 Mutual Defense Treaty and the 1998 Visiting Forces Agreement.
“No new rights or obligations are created under Edca. It merely amplifies and provides implementing details as to how the parties may exercise such rights and obligations in view of the prevailing circumstances,” he said.
He said the argument on whether Edca was an executive agreement or treaty should be left to the Supreme Court. The Senate would just have to wait for its resolution and need not express its sentiment, he added.
But Santiago said it was not a good attitude for the Senate to keep its silence on the issue just because of the pending Edca petitions in the Supreme Court.
What would happen was that it would only be the Supreme Court that would have the power to answer the question, she said.
In deference to SC
In abstaining from the vote, Drilon said he was doing so in deference to the Supreme Court, where the issue on whether the Edca is a treaty or executive agreement is pending.
Enrile, who also abstained, said the resolution was unnecessary since it was just a reiteration of the constitutional provision that any treaty must have Senate concurrence.
Not two agreements
“Why should we teach the Supreme Court through this resolution or inform them of our position when all of us must know the Constitution?” he said.
In an ambush interview, Santiago said it was not correct to say that there were two kinds of agreements—a treaty signed by the President and his counterpart from the other state, and approved by the Philippine Senate; and an executive agreement signed by the President with no participation by the Senate, and by whoever the other country designates.
“Any understanding in written form is a treaty as long as it complies with the requisites within that country of a treaty,” she said.
Otherwise, all the administration has to do is to claim that a piece of paper is not a treaty but an executive agreement and thus needs no Senate concurrence, even if the Constitution clearly states that a treaty needs Senate approval, she added.
Santiago scoffed at arguments that the Philippines needed Edca to protect it as it is engaged in a maritime dispute with China.
“You know, these diplomatic ins and outs are extremely complicated. There is no possible basis for saying it’s simple—let us side with America and it will fight the Chinese for us and that will be over. Of course not, what are you saying?” she said.
Some 100 members of Bayan staged a rally in front of the Supreme Court Tuesday, scoring the timing of the possible ruling just before Obama’s arrival for the Apec summit.