Attack on Edca bungled in high court

Acting Solicitor General Florin Hilbay’s first case was defending the Enhanced Defense Cooperation Agreement at the Supreme Court last Nov. 18. Where his predecessor faced amateurish petitions in early cases, the 40-year-old Hilbay begins against legends: former senator Rene Saguisag and former UP Law dean Pacifico Agabin. But in his favor is our traditional deference to the President over military and foreign affairs.

Saguisag opened with a weary voice, having lost his courtroom muse after his wife passed away in a car accident. He recalled his

“Magnificent 12,” the senators who voted with him in 1991 against renewing the US bases agreement. Quoting Constitutional Commission deliberations, he asserted that the entry of foreign troops and its “intergenerational consequences” cannot be left to the President alone. Chief Justice Maria Lourdes Sereno cut him off for exceeding his time, but his presence alone had conveyed his message.

Agabin, as in the Disbursement Acceleration Program hearing, argued the seemingly minor issue of the court’s jurisdiction. This was fortunate, as Sereno and Justice Marvic Leonen questioned why no incumbent senator joined the case, which argues that the Edca must be ratified by the Senate. Agabin gave the textbook argument that any taxpayer or citizen could challenge the Edca given the funds that would be spent and the gravity of omitting ratification.

Leonen prominently criticized a petition for presenting Carol Araullo, Roland Simbulan and Teddy Casiño as “activists,” a nonexistent category for a constitutional litigant. Multiple justices maintained that there are no facts against which to judge the unimplemented

Edca, and that the high court is not a trier of facts. Agabin argued that recent military exercises were done under the Edca, which overlaps with the Visiting Forces Agreement.

Agabin repeatedly downplayed deference to the President over military and foreign affairs, citing constitutional provisions that can restrict this. He answered Justice Estela Perlas-Bernabe that while judges cannot rule on the Edca’s wisdom, an extremely lopsided agreement may represent “grave abuse of discretion” which judges may strike down under their expanded power in the 1987 Constitution. He argued to Leonen that “political-question” deference to a political decision-maker is about 90-percent eroded after martial law.

UP international law Prof. Harry Roque was in his element in arguing that the Edca is a major international agreement that must be ratified by the Senate under the Constitution. This is typically a subjective debate but Roque cleverly presented the Edca as part of a new, major and well-documented US policy shift, a “pivot” from Cold-War-style garrisons to mobile units and reliance on allies. Against Hilbay’s claim that the Edca merely implements our Mutual Defense Treaty, Roque argued that the Edca extends beyond the MDT’s collective defense context. (Bernabe voiced support for this at the hearing’s end, and Justice Bienvenido Reyes stated his position was to refer the Edca to the Senate.)

International law students could appreciate Roque’s deceptively casual parries. Leonen said lack of ratification would not excuse us from honoring the Edca, but Roque cited the exception that ratification is a “fundamental and manifest” domestic requirement. Leonen argued that if hypothetical offensive US drone strikes are outside the MDT, they must also be outside the Edca. Roque reversed the argument, saying Leonen proved his point that the Edca does not merely implement the MDT. Roque claimed to have entered a temporary US base under the VFA made from shipping containers, and opined that it had been operating for 15 years. “I like to enter bases,” he quipped, self-effacing, drawing much laughter.

But Rachel Pastores of the National Union of People’s Lawyers had difficulty answering the justices. She overplayed her sensible argument that the Edca authorizes US bases, using the broad dictionary meaning, and grants America operational control over “agreed locations” where it can build structures and preposition war material. Justice Presbitero Velasco asked why the court should not accept in good faith the Edca’s explicit prohibition on permanent US bases and see how it will be implemented. An annoyed Sereno made her read the Edca line by line and concluded that it gave only the use of agreed locations, not the locations themselves, to US troops, and that the government would have full access to them subject to security protocols, contrary to Pastores’ claim that access would be limited. Pastores repeatedly cited her past experience to imply that the Edca would not be implemented as worded, which justices dismissed as speculative.

Leonen was “taken aback” by Pastores’ positions and suggested she take her defense policy arguments to the Senate. Flustered, Pastores argued that the government might get better terms, which Sereno pointed out is not a legal argument. She then cited Jennifer Laude, and Sereno cut her off so as not to prejudge the murder investigation. The hearing’s belabored last hour imparted the frustration of being on the same team as Michael Jordan, Magic Johnson and Larry Bird, and still losing.

Multiple justices cited China’s territorial incursions and a real need to bolster naval defense. At the next hearing on Nov. 25, Kobe Bryant/Hilbay will try to capitalize on this and refute Agabin/Jordan and Roque/Johnson on needing Senate ratification.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association’s committee on constitutional law and teaches this subject at the University of the East. He teaches securities law at the San Beda Graduate School of Law.