Edca cannot override state policy

One main question in the raging debate over the Edca (Enhanced Defense Cooperation Agreement) is: Can it override a law or a constitutional state policy? Based on our study (Laviña, “Executive Agreements,” Philippine Law Journal, Vol. 44 [1969]), the question has to be answered in the negative.

In 1991, the Senate rejected the controversial Manglapus-Wisner treaty (on PH–US Friendship, Cooperation and Security), which would have replaced the 1947 Military Bases Agreement. The Senate ruled that the treaty was “one-sided and unequal,” violated the Constitution and Philippine sovereignty, and was a tool of “colonialism.” Thus, the Senate upheld state policies in the 1987 Constitution: 1) banning foreign military “bases, troops, or facilities” (Sec. 25, Art. XVIII); 2) against nuclear weapons; and 3) on “independent foreign policy.”

The only exception to the first constitutional proscription is a “treaty” concluded with the concurrence of two-thirds of the members of the Senate (and recognized as a treaty by the United States), and when deemed necessary by Congress, to be approved by a majority vote of the Filipino people in a plebiscite.

President Corazon Aquino and her foreign secretary, Raul Manglapus, campaigned hard along with the Americans to retain the US bases. They lost.

Stung by her defeat in the Senate, the then president withdrew the official notice—unusual in diplomatic history—of termination of the US bases and proposed a few years of extension. The US government did not honor her generous gesture. The last American soldiers left Subic in 1992.

When the US government announced its “pivot” strategy to the Asia-Pacific, President Aquino, the son, as if by prearrangement, readily accepted the “rotational expanded presence” of thousands of US troops. Unlike in the Manglapus-Wisner treaty, there were no public consultations. Foreign Secretary Albert del Rosario had his silly “credible defense posture,” under the US shadow, against the Chinese. Defense Secretary Voltaire Gazmin, went overboard and offered our former military bases for America’s use. The three have been carelessly dismantling constitutional state policies, especially that against military bases.

Predictably, the Edca was signed by Gazmin and US Ambassador Philip Goldberg as a mere executive agreement—that is, without Senate scrutiny, vote, or concurrence, violating (deliberately) the Charter. The President, Del Rosario and Gazmin thereby committed grave abuse of discretion.

Under the US system of government, the chief executive has primacy over foreign relations (US vs Curtiss-Wright, 299 US 304). G.M. Mackworth argued for him almost unlimited discretion on international agreements (Laviña, at 481).

As early as 1905, Professor Hyde opined that “executive agreements,” like “treaties,” had the force and effect of the supreme law for a nation. In US vs Belmont (301 US 324), the majority opinion penned by Justice Sutherland arrived at a conclusion that no state policy could prevail against an “international compact.”

However, Mr. Justice Stone, with whom concurred Justices Cardozo and Brandeis, disagreed. The Altman case (224 US 283) did not necessarily require such a result as Sutherland reached. And a lower court (Cut Diamonds case) had taken an opposite view, holding that such agreements were neither treaties nor had the force and effect of law.

There is, therefore, no unanimity on the issue in the United States. Admittedly, however, the “Four Packages of Cut Diamonds” (255 Fed. 314 [1918]) represents a very extreme minority liberal construction of the presidential prerogatives, holding that merely on his powers on foreign relations, he may override state laws and state policies.

This legal situation has obtained in US jurisdiction (until recently when the US Supreme Court ruled in the case of Medellin vs Texas that an international agreement not approved by the US Senate is unenforceable in US jurisdiction), simply because of the express wording of the US Constitution:

“…[T]his Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land…”

In the Philippines, on the other hand, we do not have an identical or similar provision. One authority contends that, unlike in the United States, our President must, in making executive agreements, act scrupulously within the laws and conform with the policies already established by Congress (Bisnar, cited by Laviña at 479–480).

Then in 1963, the Supreme Court, in Gonzales vs Hechanova (60 O.G. 802 [1964]), ruled: “… Our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but also when it runs counter to an act of Congress.” The high court further stated that the President cannot indirectly repeal a law through an executive agreement, by providing for the performance of the very act prohibited by the law.

Clearly, therefore, in our jurisdiction, an executive agreement or even a treaty cannot negate or override a law or a constitutional state policy. Concededly, the President is not above the law, much less the Constitution.

The President rises or falls with the Edca. He cannot, at this stage, abandon it as an executive agreement and submit it to a President-friendly Senate as a treaty. This would be an aberration of forum-shopping in treaty-making!

The Edca has the flaws of the Manglapus-Wisner treaty. That treaty dealt with one base—Subic. The Edca deals with the whole archipelago, with “locations” of old and new bases or facilities, having mind-boggling costs. The stark purpose of the Edca is not defense or typhoon-watching; it is giving to the US “pivot” a home, indefinitely and rent-free, derogating state policies and sovereignty.

Nelson D. Laviña is a retired ambassador.