SC justices: Senate Edca’s proper forum
MANILA, Philippines–Several justices are entertaining the idea that the Supreme Court refer to the Senate for scrutiny and concurrence the controversial Enhanced Defense Cooperation Agreement (Edca) between the Philippines and the United States.
Justices Marvic Leonen, Jose Perez and Bienvenido Reyes and Chief Justice Ma. Lourdes Sereno raised the possibility during the four-hour oral arguments Tuesday on the petition of former Senators Rene Saguisag and Wigberto Tañada Jr., Makabayan legislators and civil society groups questioning Edca’s constitutionality.
The justices hinted that the high court, for now, might not be the proper forum to debate on the merits of Edca, that the Senate could be asked to scrutinize the agreement and that the petitioners should raise their objections before the senators.
“It is not even better for this court to see Edca take its shape and then if there is a violation of law bring the matter to the proper forum,” Sereno told the petitioners’ lawyers.
Leonen told the lawyers that arguments against Edca “should be given to the Senate who are your representatives.”
No Senate approval
Under the Constitution, the Senate is empowered to ratify treaties that the country enters into.
The petitioners’ lawyers said the court could still rule on Edca’s constitutionality and whether the executive branch committed grave abuse of discretion by agreeing to the pact.
Former dean Pacifico Agabin of the University of the Philippines law school disagreed with the Leonen proposition that the petition would be rendered moot and academic should the court decide to transmit the agreement to the Senate.
“No, transmittal of Edca to the Senate does not mean it cannot be challenged on substantive grounds,” Agabin said.
Lawyer Harry Roque said he would consider it a “victory” for the petitioners if the court referred Edca to the Senate.
“It is a recognition that there is a violation of the Constitution, the primary reason being it does not have the seal of approval of the [Senate],” Roque said in an answer to Justice Teresita Leonardo-de Castro’s query on whether the petitioners were contesting only “procedural infirmity” in the crafting of Edca.
Senate has to OK foreign bases
De Castro wanted to know from the petitioners what other Philippine laws might be violated by Edca.
The petitioners claimed that the provision of “agreed locations” in Edca—Philippine territory turned over to the United States where it can build permanent structures to house equipment, materiel and supplies—was tantamount to the return of foreign military bases prohibited by the 1987 Constitution.
Querying Rachel Pastores, another lawyer of the petitioners, Justice Perez said it was not true that the Constitution prohibited foreign bases, pointing out that the Charter’s specific provision do allow foreign bases if allowed by the Senate or presented to the people through a referendum.
If the Senate or the people approve of foreign base, he told Pastores, then the petitioners could no longer invoke violations of national sovereignty or territorial integrity.
“I don’t have expertise whether there is giving up of national sovereignty or territorial integrity. They (arguments) should be given to the Senate for the Senate to do its work,” Perez said.
Justice Reyes took a more definite stand: “Without declaring the constitutionality of Edca, we instead throw it to the Senate for hearing and consideration.”
Compromising sovereignty
Pastores and Roque said the petitioners were attacking Edca not only because it was not concurred in by the Senate but also because President Aquino committed abuse of discretion by compromising national sovereignty and territorial integrity.
For his part, Justice Antonio Carpio discussed with Roque the country’s relations with China and the United States regarding ongoing disputes.
Carpio produced maps of the Philippines showing its territories supposedly recognized by the United States but were being claimed by China, and in the case Scarborough Shoal, occupied.
He said it was the US view that prevailed over the Philippine stand on whether Manila could invoke the US-PH Mutual Defense Treaty.
Carpio asked Roque that if he were the President’s adviser, would he recommend the increase in defense spending, enter into an alliance with other regional powers, strengthen relations with the United States or sue China in the international court?
Roque said he would advise the President to take all steps except strengthening Philippine alliance with the United States, saying in the eyes of some countries such as China, “we are considered a factotum of the US, mere lackeys for our former colonial master.”
Independent policy
The lawyer said the pork barrel scam showed that there were tens of billions of pesos of available funds that could be used by the government to promote an independent national security policy.
He agreed with Carpio that the Philippines should pursue a more independent stand similar to Vietnam’s.
The justice, however, made his point by saying that Vietnam did pursue an independent policy to press its claims in the West Philippine Sea but still failed due to China’s military might.
Not time to adjudicate
The Chief Justice asked whether the fact that the Senate had not demanded that Edca be presented to it for concurrence could mean that the upper chamber had agreed with Edca.
“Maybe not now,” Pastores said, to which Sereno replied, “Precisely, so it is not the time for us to adjudicate.”
Sereno debated with Pastores on whether Edca was lopsided and whether the Philippines was at the losing end.
The Chief Justice pointed out that Edca’s provision on “agreed locations” implied that these would remain Philippine territory, along with any permanent structure built on it by the Americans.
Sereno said the “agreed locations” were not really free since under Edca, the Armed Forces of the Philippines admitted that it had short-term capability gaps that the agreement could address.
She pointed out that one of Edca’s objectives was for the development of maritime security and maritime domain awareness.
Unfair
The Chief Justice said the petitioners’ claim that there were “falsities” and “derogations” in Edca seemed unfair since the court had not been presented with facts and the petitioners were basing their argument on the country’s history in hosting US military bases.
“Can we condemn them (US) now because he have bad experiences with the military bases? Should we not just give them a chance first? [And] when we see acts which derogate Philippine sovereignty, then that’s the time we come in?” she asked.
The Chief Justice asked Pastores if it could be considered grave abuse of discretion to seek the help of an ally as a way to defend its sovereignty and territory.
“Is it not the first right of the State to defend itself? Why don’t we test and see if in fact we’ve no say in how things are done [through Edca]?” Sereno asked.
Lack of merit
The Supreme Court denied for “lack of merit” the petition-in-intervention of the family of Filipino transgender woman Jeffrey “Jennifer” Laude, who was believed killed by a US serviceman, to participate in the case.
In an en banc decision, the justices said the Laude case, which involves discussing the sensitive nature of a pending criminal investigation, was “misplaced” in the oral arguments concerning Edca’s constitutionality and must be disallowed.
The government side on Edca will be taken up in the next session of the oral arguments on Nov. 25.
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