Pussyfooting on Edca

If the justices of the Supreme Court are minded to say that President Benigno Aquino shouldn’t have bypassed the Senate in signing the Enhanced Defense Cooperation Agreement, they should come right out and say so. They owe us that candor. Otherwise, they should frankly uphold the Edca as a proper measure taken by Mr. Aquino as the country’s chief executive, commander in chief and principal voice in conducting our foreign relations, whether with our former colonizer, the United States, or the regional hegemon that is China.

But for the justices to say that the Edca opponents had merely chosen the “wrong forum,” that they should’ve presented their pleas to the sidestepped and presumably aggrieved senators rather than to the Supreme Court, they end up doing a Pontius Pilate on the Edca, and doing the Filipino people a disservice.

What the justices tried to do on Tuesday when it heard the Edca opponents would have been par for the course in the usual run of cases. It is called judicial avoidance, when unelected judges defer to the elected branches of government and leave them enough room to exercise discretion rather than straightjacket them with legal dogma.

But the battle lines had been drawn in the two petitions against the Edca, the first filed by the Bayan Muna party-list group and the second by former senators Rene Saguisag and Wigberto Tañada. They invoked clear-cut constitutional requirements, especially two rules: that all foreign treaties must first be approved by two-thirds of the Senate, and that “foreign military bases, troops or facilities” may be allowed only through such a treaty signed by the Philippines and “recognized [likewise] as a treaty by the other contracting state.” They invoke the classic distinction between full-fledged treaties that require Senate approval as stated above, and “executive agreements” that merely implement existing laws or treaties and which the President can sign on his own without seeking prior Senate approval.

The Edca opponents remind us that the high court had long ago applied the more stringent “treaty” requirements on the PH-US Visiting Forces Agreement even if the VFA deals merely with foreign troops and not actual foreign bases, and despite the fact that the United States did not sign it as a treaty but as a mere executive agreement.

On the other hand, the Edca merely implements our existing arrangements with America under the 1951 Mutual Defense Treaty and the 1999 VFA, in which case the Edca is truly a proper executive agreement that did not require Senate approval.

It’s rather straightforward: Either the Edca is a valid executive agreement, in which case it should be upheld, or the Edca should have been presented to the Senate for ratification like the VFA, in which case it should be struck down as unconstitutional.

For the justices to suggest a middle ground, so to speak, bespeaks an attempt at prudence without supporting jurisprudence.

To start with, what would the high court order? A remand, and to whom? Perhaps to the President, but the high court itself has held that in foreign affairs matters, it had no power to compel the President to act! Perhaps to the Senate, but that would require first that they strike down the Edca as unconstitutional! That would be a resounding, though fleeting, victory for the Edca opponents, because none of the incumbent senators has signed either of the petitions presented to the high court. The signatures of Saguisag and Tañada may remind us of that glorious moment when we finally evicted the US military bases in 1992, but they also signal us that only two former senators and none of the incumbents join the cause today. If the Edca is later presented to the Senate, it would most probably pass muster.

Many Filipinos, including some on the bench today, have asked how “ironclad” indeed is the US commitment under the MDT. That is a legitimate question, but the real test is in the fighting rather than in the talking. The validity of the Edca should rise and fall not on the basis of speculation but on the basis of what it says on its face—that is, whether the Philippines thus commits itself to obligations compatible with our sovereignty and which the executive branch can carry out on its own without calling for legislation.

It is best to stick to the real justiciable issues presented to the Supreme Court today—namely, the constitutionality rather than the desirability of the Edca, and the real purpose of the hearings, which is to settle these issues rather than to save the President from embarrassment.