Jugular issue on Edca

Of the many issues raised by the petitioners challenging the constitutionality of the Enhanced Defense Cooperation Agreement (Edca) in the Supreme Court, the jugular, I think, is the nature and extent of our government’s control over the “agreed locations” (ALs).

Brief background. The Edca was signed on April 28, 2014, by the Philippines and the United States ostensibly to implement the Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA) earlier entered into by the two countries on Aug. 30, 1951 and Feb. 10, 1998, respectively.

The MDT aims “to maintain and develop their individual and collective capacity to resist armed attack” while the VFA seeks “to strengthen their present efforts to collective defense for the preservation of peace and security.” Per its Art. I, the Edca “deepens defense cooperation between the Parties and maintains and develops their individual and collective capacities, in furtherance of Article II of the MDT.”

Both the MDT and the VFA had been concurred in by our Senate and upheld as “not unconstitutional” by our Supreme Court. However, the Edca had not been submitted to the Senate for ratification.

Due to my limited space, I will no longer explain the procedural questions (like the petitioners’ alleged lack of legal standing) and policy issues (like the alleged “lack of assurance that the US will actually come to the aid of the Philippines in case of an invasion by China”).

Agreed locations. Under the Edca, US armed forces, US contractors and “others as mutually agreed, shall have the right to access and use… [ALs that] may be listed in an annex to be appended to this Agreement.”

The Edca allows US forces, contractors, vehicles, vessels and aircraft to “conduct the following activities [inside the ALs]: training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies and materiel; deploying forces and materiel; and such other activities as the Parties may agree… without rental or similar costs… [but the] US forces shall cover their necessary operational expenses…”

Further, the United States shall have “operational control of [ALs] for construction activities… [but the Philippines] shall have access to the entire area of the [ALs]… consistent with operational safety and security requirements…”

Jugular issue. Petitioners argue that by yielding to the US forces “the operational control of ALs for construction activities…” without payment of rentals, taxes and other costs, the Edca “constitutes… an unconscionable sellout of our sovereignty…” and deprives the Philippines of its police, eminent domain and taxation powers.

Our Constitution states that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate…”

Petitioners contend that the ALs are really disguised military bases without the benefit of a treaty concurred in by the Senate, because they “can contain houses or barracks to accommodate thousands of troops; they contain weapon armories, arsenals or silos; they have secure storage buildings for prepositioned supplies and war materiel; they have their own facilities for refueling, bunkering, and repairing warships or aircraft; they have their own perimeter wall which will prohibit unauthorized entry; they have their own telecommunication systems; and there are even launching pads or sites for the deployment of troops and war materiel to other countries. In fact, they even have separate facilities for water, electricity and other utilities…”

The government counsel, Solicitor General Florin T. Hilbay, counters that Edca, “by its own express terms,” is only an executive agreement to implement the MDT and the VFA, and not a treaty that needs Senate ratification.

He explains that Edca was entered into pursuant to the President’s constitutionally-granted exclusive military and diplomatic power and the “Court should not render the President helpless or impair his ability to set up a national security apparatus in the face of clear, present, and verified reports of activities that endanger the
integrity of the Philippine State.”

On the petitioners’ contention that the United States could deploy nuclear weapons in the ALs in violation of our Constitution, Hilbay points to Art. IV-6 of Edca plainly saying that the “prepositioned materiel shall not include nuclear weapons.” He pits petitioners’ allegation of disguised military bases against the Edca’s provision clearly conceding the Philippines’ ownership of the ALs and the government’s assurance that our country retains sovereignty over them.

In deference to the sub judice rule, I shall not comment on these arguments, except that I believe the case will turn on how the parties explain the nature and extent of control that our government exercises over the ALs.

I also think that if this were a US Supreme Court case, the conservatives would decide based strictly on the textual provisions of the Constitution and original intent of its framers. On the other hand, the liberals would interpret the Charter according to the contemporary needs and paramount wellbeing of our people. (Please refer to my column on legal philosophy on 10/26/14.)

I shall eagerly await the decision and separate opinions of our justices, which may open windows to their ideological or philosophical leanings.

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