MANILA, Philippines—Spurred by the oral arguments in the Supreme Court, Sen. Miriam Defensor-Santiago on Friday set a hearing on the Enhanced Defense Cooperation Agreement (Edca) with the United States to ascertain if the Philippine Senate should concur in the bilateral pact.
But ahead of the hearing set for Monday, Santiago, chair of the foreign relations committee, said the security deal signed just ahead of US President Barack Obama’s April 2014 visit to the Philippines wasn’t valid unless ratified by the Senate.
Santiago said the Constitution provides that no treaty or international agreement shall be valid and effective unless the Senate had concurred in it.
Senator Miriam Defensor-Santiago. INQUIRER FILE PHOTO
“So if the Senate does not express concurrence, then the Edca is not valid or effective. In constitutional contemplation, therefore, if there is no action by the Senate, then the Edca does not exist,” she told reporters.
For his part, Senate President Franklin Drilon said the Senate would only ratify the agreement if the Supreme Court would say so, otherwise, it could not compel Malacañang to submit the document to the upper chamber. But he said that Santiago could go ahead with her hearing.
Only if SC says so
“Certainly, we respect the view of Senator Santiago but we have to await the SC decision at this point. Malacañang will have to submit it if the SC decides, at this point, that it is a treaty which is subject to ratification,” Drilon also told reporters.
“But until that issue is resolved, no law requires Malacañang to transmit it to us because they hold the view that it is an agreement,” he added.
Edca allows American troops greater access to Philippine military camps and bases, to put up facilities and store defense materiel.
The petitioners have asked the Supreme Court to declare the deal unconstitutional for violating the provisions on nuclear weapons and the establishment of foreign military bases in the country without Senate approval.
Justices had hinted about referring the agreement to the Senate for its scrutiny and concurrence during the oral arguments on the petitions.
But last Tuesday, acting Solicitor General Florin Hilbay argued that the high court could not refer the pact to the Senate without first declaring it unconstitutional and without authority from the President.
“The fact is no member of the Senate is before us saying that the Senate’s prerogative is being diminished,” Hilbay said.
Santiago called the Monday hearing on Edca “to pass upon whether the Senate should concur with the agreement.”
“This is to resolve what appears to be the raging state of debate in the Supreme Court. It seems that there is a need to clarify what is the position of the Senate. Are we to be taken as expressing silence or consent—in the words of the acting solicitor general—or are we interested in discharging our duties under a specific constitutional provision?” she asked, after speaking at the Pamantasan ng Lungsod ng Maynila.
Technicality
Santiago was referring to the constitutional provision that says: “No treaty or international agreement shall be valid and effective without the concurrence of at least two-thirds of the members of Congress.”
Normally, the foreign secretary signs a treaty and forwards it to the President for ratification and, shortly after, it is transmitted to the Senate for ratification, Santiago said.
The Edca was signed by Defense Secretary Voltaire Gazmin and US Ambassador to the Philippines Philip Goldberg.
“Notice that there was a technicality involved. President Aquino has not ratified the Edca. It was signed by Defense Secretary Gazmin. Originally, he should have given the document to the President for his ratification. Then the document should have been sent to the Senate for concurrence of ratification. But the procedure has not been followed, the protocol has been disregarded,” Santiago said.
This was complicated by the groups and individuals that petitioned the Supreme Court to rule on its legality, without waiting for Senate concurrence, she said.
“This places the Supreme Court in a difficult position because of the way the Constitution is worded. The Constitution says that no treaty or international agreement shall be deemed valid and effective, except with the concurrence of so-and-so,” she said.
Nonexistent document
“So what is the Supreme Court supposed to do with respect to a nonexisting document? That is the problem with the protocol that has been followed so far,” Santiago said.
Hence the necessity of holding a hearing on Edca, she added.
In a statement, Santiago said President Aquino, by agreeing to the Edca, could be held accountable for “impeachable offenses.”
“These are culpable violations of the Constitution and betrayal of public trust, for allowing a foreign government to maintain military bases without Senate concurrence,” she said.
Drilon said the Senate could not compel Malacañang to submit the pact to it.
“If at this point the executive [branch] will not submit the treaty or the agreement for the ratification, we cannot do anything, especially since it is pending in the SC,” he said.
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