Why has public debate so glaringly ignored the objection that the Enhanced Defense Cooperation Agreement (Edca) with the United States is potentially unconstitutional because it must first be ratified by our Senate as a treaty? This issue was raised by no less than Senate President Franklin Drilon and Sen. Miriam Defensor-Santiago, two of our most highly respected lawyers.
We enjoyed the spectacle of hosting US President Barack Obama. Filipinos would like to believe that his “ironclad” commitment to send GI Joes to help them in their hour of need covers disputed rocks in the West Philippine Sea. Obama praised the adobo and lumpia of the White House’s Filipino chef. Kris Aquino got her selfie with him. Jeffrey Roxas Chua and his red Mitsubishi Lancer Evolution did not attempt to cut Obama’s convoy.
Why weigh down our uplifted spirits by mentioning our Constitution at such an inconvenient time? Is not securing the supposed military backup for our plucky Marines on the rusting BRP Sierra Madre the utmost priority, regardless of who signs for it?
The issue’s heart is whether the Edca is legally classified as a treaty or an executive agreement. A treaty must be ratified by the Senate under our Constitution. An executive agreement may be approved by the President alone, pursuant to his broad powers as our sole voice in foreign affairs and our commander in chief. In the American experience, the Senate had less and less participation as presidents asserted themselves in foreign affairs.
There is no clear distinction between a treaty and an executive agreement. A treaty supposedly embodies a substantial change in national policy or a permanent arrangement, but executive agreements have broad coverage and the same legal effect as treaties. Arguably, the President does not have to seek ratification unless the international agreement would conflict with existing laws, as he lacks the power to amend laws. It is perfectly debatable which one the Edca is, and this area of law has been kept intentionally flexible.
Our Constitution has a special rule regarding foreign troops: “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate.” The President would argue, however, that this rule is in the context of permanently stationed troops and bases, while the Edca covers temporarily visiting troops and related logistics arrangements. There is likewise no clear rule that rejects this interpretation.
I am not concerned that the question will likely be referred to the Supreme Court, and it proved in the pork barrel case that it can take a partisan, politically loaded case and issue a credibly nonpartisan decision. I am more concerned that the weighty question has provoked no debate.
Recent experience has shown that Filipinos have a strong aversion to proper procedure in constitutional cases, and our memory-driven, bar-exam-obsessed legal education is partly to blame. When the Reproductive Health Act was challenged, the first, crucial objection was that the Supreme Court did not have proper jurisdiction to hear the case. Former senator Kit Tatad quoted the Pope as his authority during his opening speech and the petitioners made so many political, ideological, religious and medical arguments that Chief Justice Maria Lourdes Sereno memorably told them that their solution is to have enough people who think like them elected into Congress.
In law, who gives the answer is just as important as the answer itself. However, Filipinos have never focused on the former. The persistent objections to jurisdiction were never discussed again in the public debate after the Supreme Court handed down its RH decision. Nor did the media quote Justice Marvic Leonen’s 90-page dissent in the context that he disagreed that the Court had proper jurisdiction. Without this crucial context, he seemed to be taking a very extreme position that none of the RH Law provisions struck down by the Court should have been struck down. To illustrate the importance, one might accept the decision’s emphasis on doctors who invoke religion to object to certain acts, but the decision implicitly guessed what Catholic doctors think given there was no actual doctor being coerced under the then unimplemented RH Law.
The question of who must decide on the Edca independent from the actual decision is being too casually dismissed given a popular President, a charming Obama and the specter of the Chinese navy in the background. However, we must precisely focus on such questions now, lest they become crucial when we have become apathetic to our democratic institutions under an unpopular administration.
These dull questions about proper jurisdiction, independent of the actual answers, are mere warm-ups for when the country debates the Bangsamoro Basic Law. The citizenry was ecstatic that the Framework Agreement was signed, but it has not sunk in that they have to critically consider the proposed Basic Law, even if they support it. Many extremely credible lawyers have voiced apprehensions that the proposed Basic Law will conflict with our Constitution and require its amendment. This will require a referendum, and the ordinary voter cannot evade the solemn duty to consider this generation-defining question of potential unconstitutionality. The gravity of this duty has apparently not sunk into the ordinary voter’s mind, given the nonresponse to the alleged need to ratify the Edca.
Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.