{"id":4095,"date":"2015-12-02T18:07:51","date_gmt":"2015-12-02T18:07:51","guid":{"rendered":"http:\/\/www.philippinesentinel.org\/?p=4095"},"modified":"2015-12-02T18:07:51","modified_gmt":"2015-12-02T18:07:51","slug":"edca-what-can-we-expect-by-dr-erick-san-juan","status":"publish","type":"post","link":"https:\/\/www.philippinesentinel.org\/?p=4095","title":{"rendered":"EDCA, What Can We Expect? by Dr. Erick San Juan"},"content":{"rendered":"

Once again the Supreme Court\u2019s decision on the petition against the Philippines’ Enhanced Defense Cooperation Agreement<\/strong> (EDCA) with the US was deferred November 16. It was reset to December 16 or thereafter.<\/p>\n

It was reported at manilatimes.net (November 8) that \u201cthe Supreme Court (SC) is poised to declare the controversial Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States constitutional,” according to unimpeachable sources.<\/p>\n

The Manila Times has gathered from several sources that an 82-page draft decision upholding the constitutionality of the defense agreement had been circulated among the 14 magistrates. The ponente<\/em> (writer) of the case is Chief Justice Maria Lourdes Sereno.<\/p>\n\n\n\n\n
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In her draft decision, Sereno said EDCA is \u201cnot constitutionally infirm,\u201d the sources told the Manila Times. According to the decision, President Benigno Aquino III, as head of the executive department, has the power to sign agreement on matters of foreign affairs and national security.<\/p>\n

An overwhelming majority of the justices are inclined to agree with Sereno since no dissenting opinion had been issued.<\/p>\n

Some of the justices who do not see eye to eye with the Chief Justice, however, are waiting for a magistrate to issue a separate opinion concurring with the constitutionality of EDCA and they will favor that opinion so that Sereno will not gain credit from President Aquino because she is the ponente of the case.<\/p>\n

A source said CJ Sereno circulated her draft decision days before the holding of the Asia-Pacific Economic Cooperation (APEC) to please Malaca\u00f1ang and gain ‘pogi’ points [credit] from the President. The EDCA decision is seen to be the Philippines\u2019 \u201cgift\u201d to US President Barack Obama, who has flown to Manila to attend the APEC summit scheduled from November 17 to 19.\u201d<\/p>\n

What went wrong (or right)? Well, the Senate did the right thing through Senator Miriam Defensor-Santiago together with the other 14 senators, adopted Sen. Santiago\u2019s resolution expressing the strong sense of the Senate that, absent their concurrence, the Enhanced Defense Cooperation Agreement (EDCA) is a treaty prohibited under the Constitution.<\/p>\n

Beside Santiago, those who voted in favor of the resolution were Senators Sonny Angara, Nancy Binay, JV Ejercito, Chiz Escudero, TG Guingona, Lito Lapid, Loren Legarda, Bongbong Marcos, Serge Osme\u00f1a, Koko Pimentel, Grace Poe, Ralph Recto, and Cynthia Villar. The 15th vote came from Sen. Pia Cayetano, who was not at the session hall during the vote, but later manifested that she is voting in the affirmative.<\/p>\n

Plenary approval formalizes Senate Resolution No. 1414 as the Senate\u2019s position on the question of the validity and effectivity of the EDCA. Only Sen. Sonny Trillanes voted against the resolution, deferring to the Supreme Court. Under the same premise, Senate President Frank Drilon and Sen. Juan Ponce Enrile abstained. Sen. Bam Aquino, who was not in session during the vote, later manifested his abstention.<\/p>\n

In her sponsorship speech, Santiago, chair of the Senate committee on foreign relations, argued that the EDCA \u201cbelongs to the category of prohibited treaty. Namely, it is a treaty of foreign military bases, troops, or facilities without the concurrence of the Senate.\u201d<\/p>\n

Santiago, the foremost constitutional expert in the Senate, insisted that \u201cother than concurrence of the Senate, no authority expressly transforms a treaty into law.\u201d She cited the Treaty Clause of the Constitution, Article 7, Section 21, which states that:<\/p>\n

“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.”<\/p>\n

The senator added that the need for Senate concurrence was made an integral part of the nature of a special kind of treaty\u2014that which involves<\/p>\n

\u201cforeign military bases, troops, or facilities\u201d\u2014by the Constitution, Article 18, Section 25:<\/p>\n

.\u2026 foreign military bases, troops, or facilities shall not be allowed in the \u00a0 Philippines except under a treaty duly concurred in by the Senate.\u2026 and \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 recognized as a treaty by the other contracting State. (Emphasis added)<\/p>\n

Santiago said the EDCA falls under this prohibition, as it had substantive provisions on the establishment, location, stationing of the U.S. military forces and storage of military facilities in Philippine territory.<\/p>\n

\u201cThat such a prohibited \u2018treaty\u2019 has been concluded by the Executive Department as an executive agreement testifies to its inherently prohibitory nature under the Constitution,\u201d the senator added.<\/p>\n

She further claimed that the prohibitory character of Article 18, Section 25 trumps Article 8, Section 4(2), which Macala\u00f1ang used to defend the EDCA as an executive agreement. The Constitution, Article 8, Section 4(2), states that:<\/p>\n

All cases involving the constitutionality of a treaty, international or<\/p>\n

executive agreement, or law, which shall be heard by the Supreme\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Court en banc\u2026. shall be decided with the concurrence of a majority \u00a0\u00a0\u00a0\u00a0\u00a0 of the Members who actually took part in the deliberations on the issues \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 in the case and voted thereon.<\/p>\n

\u201cOn the remote assumption that this provision may be applicable to a case involving the constitutionality of a treaty or executive agreement, it must exclude from its applicability the prohibited treaty as described in the Constitution, Article 18, Section 25,\u201d Santiago said. These articles of our constitution are legal matters that are all binding.<\/p>\n

The Senate statement on EDCA came a week before U.S. President Barack Obama\u2019s expected arrival in the Philippines for the Asia-Pacific Economic Cooperation (APEC) meet.<\/p>\n

The senator added that she hopes the Supreme Court, to which she sent a copy of the proposed resolution in June, will consider the strong statement from the Senate \u201cwith decisive concern.\u201d<\/p>\n

Need we say more? Our congratulations to Sen. Santiago! Hoping that the SC decision come December will favor the Senate and let the Senate of the Philippines deliberate on the EDCA.<\/p>\n

It’s not the Americans’ fault per se<\/em> but we really have to deal with them in a position of strength and level the playing field. Our colonial mentality should be redirected once and for all to get what’s due us.<\/p>\n","protected":false},"excerpt":{"rendered":"

Once again the Supreme Court\u2019s decision on the petition against the Philippines’ Enhanced Defense Cooperation Agreement (EDCA) with the US was deferred November 16. It was reset to December 16 or thereafter.<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0,"footnotes":""},"categories":[52],"tags":[],"_links":{"self":[{"href":"https:\/\/www.philippinesentinel.org\/index.php?rest_route=\/wp\/v2\/posts\/4095"}],"collection":[{"href":"https:\/\/www.philippinesentinel.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.philippinesentinel.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.philippinesentinel.org\/index.php?rest_route=\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/www.philippinesentinel.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4095"}],"version-history":[{"count":0,"href":"https:\/\/www.philippinesentinel.org\/index.php?rest_route=\/wp\/v2\/posts\/4095\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.philippinesentinel.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4095"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.philippinesentinel.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4095"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.philippinesentinel.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4095"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}