‘Remanding’ Edca to Senate an unprecedented move

During the oral arguments at the Supreme Court on the Enhanced Defense Cooperation Agreement (Edca), some justices thought of referring the matter to the Senate, as the “proper forum” (“SC justices: Senate Edca’s proper forum,” Front Page, 11/19/14).

With all due respect, the move would be unprecedented, to say the least. In our system of government, the Constitution confers treaty-making upon the chief executive; the Senate concurs in or rejects a treaty; Congress allots the budget to implement it; the Supreme Court rules on its constitutionality when challenged.

For the Supreme Court to refer the Edca to the Senate is to overrule presidential constitutional discretion, a step inconsistent with the principle of separation of powers. Coordination is, of course, ideal, but in this case it may disturb the smooth functioning of the separate and coequal branches of government, and clog the Senate with questioned agreements.

In ordinary judicial proceedings, the Supreme Court may remand to the lower court a petition improperly or wrongly filed in it; present rules require outright dismissal of like petitions.

Truly, to refer the Edca to the Senate is to say that it should have been formalized as a “treaty” (with Senate concurrence) and not as an “executive agreement” (bypassing the Senate). The Aquino administration was not transparent; no public consultations were made. Secrecy pervaded the negotiations; and the original head of the Philippine panel had to resign.

The Edca makes the whole archipelago one big US military base. The Philippines has to renovate old military and naval bases and construct new ones, with mind-boggling expenditures. But war seems improbable in the West Philippine Sea. The United States says its aim is “not to counter” or “to contain” China, its biggest creditor. China assures that it will not use force on members of the Southeast Asian Nations. The 1975 Philippine-China joint communiqué stresses “non-aggression” and “no threat or use of force.”

The Solomonic option appears to be for the Supreme Court to exercise its constitutional discretion, in line with an Inquirer editorial’s suggestion (“Pussyfooting on Edca,” Opinion, 11/21/14) to make a ruling now. The Edca is invalidly concluded in the form of an executive agreement, with grave abuse of discretion to override a constitutional state policy outlawing “foreign military bases, or troops, or facilities” in the country after September 1991 (Section 25, Article XVIII, 1987 Constitution). The Edca is unconstitutional.—NELSON D. LAVIÑA, retired ambassador, nlavina3@fastmail.fm