Don’t ignore Senate

The Supreme Court is expected to finally rule on the status of the controversial Enhanced Defense Cooperation Agreement (Edca), perhaps even by next week—and the Senate last Tuesday took the opportunity to send an unmistakable message: The Edca is a treaty, not a mere executive agreement, and it cannot take effect without Senate concurrence.

Fourteen of the 24 senators voted for the resolution filed by Sen. Miriam Defensor Santiago, with a 15th (Sen. Pia Cayetano, who was not present at the vote) belatedly expressing her support for the resolution. Both the Senate president, Franklin Drilon, and the minority leader, Juan Ponce Enrile, abstained. (Only one senator, Antonio

Trillanes IV, voted against it.)

A look at the vote shows that the senators crossed party lines; in the matter of the Edca, the majority of senators (more than two-thirds of the chamber, in fact, once you factor in the absence of detained Senators Jinggoy Estrada and Bong Revilla) thought the Aquino administration was simply wrong.

As we have written in this space before, the case before the Court is 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 [Visiting Forces Agreement], in which case it should be struck down as unconstitutional.”

But what makes a meeting of minds merely an executive agreement? The classic answer, from both theory and jurisprudence, is that executive agreements implement existing laws or treaties.

That is Trillanes’ position. “No new rights or obligations are created under Edca. It merely amplifies and provides implementing details as to how the parties may exercise such rights and obligations in view of the prevailing circumstances,” he said, referencing the Mutual Defense Treaty of 1951 and the Visiting Forces Agreement of 1998.

The majority of senators hold the contrary position. Two constitutional provisions support their view: that all treaties must be approved by the Senate with a two-thirds vote, and that “foreign military bases, troops or facilities” may be allowed only through a treaty recognized by both the Philippines and “the other contracting state.”

And a look at the provisions of Edca supports the interpretation that in fact the country is granting the US military additional rights, including greater access to camps of the Armed Forces of the Philippines.

This is a policy decision well within the purview of the Senate—and, as we have argued before, also something that a majority of senators would readily support. At a time when Chinese expansionism in the West Philippine Sea has allowed Beijing to seize de facto control of Scarborough Shoal and tighten its net around islets in the Spratlys claimed by the Philippines, greater collaboration with the US military (and with those of other allies) is a logical next step.

This makes the decision on Malacañang’s part to treat the Edca as an executive agreement even more puzzling—President Aquino could have handily forged a two-thirds majority in the Senate to vote for its passage. Bypassing the Senate, which is dominated by Palace allies, was a needless, short-sighted decision.

Now the Supreme Court is poised to rule, and while the ruling can go either way (contrary to premature news reports), the damage has been done.

The Court must rule for the Constitution—and that means sending a message to Malacañang that it cannot ignore the Senate when what is at stake is an ambitious expansion of rights granted to the American military in the Philippines. The Court must heed the sense behind the Senate majority’s support for the Santiago resolution, that a President, no matter how popular, must hew closely to the system of checks and balances the Constitution itself provides.

The case is not about giving the Aquino administration the tools to project a credible defense posture in the face of Chinese expansionism. Rather, it is about sharpening the tools already available, to strengthen Philippine democracy. That is the true counterweight to lawlessness, at home or abroad.