Law experts tell Senate: EDCA needs Senate concurrence

MANILA, Philippines - Faced with a dilemma that Malacañang will not transmit the Enhanced Defense Cooperation Agreement (EDCA), Senate foreign relations committee chair Sen. Miriam Defensor-Santiago said on Monday that she would ask her colleagues to adopt a resolution that will express the Senate’s views that the agreement should be concurred by the Senate.

Santiago said the Senate is left with the option to express its sense on the EDCA since the Palace has considered the agreement as already enforced even without the Senate's concurrence.

The recommendation was also pushed forward by former Sen. Rene Saguisag during the hearing.

“We will pass a resolution to express the sense of the Senate about the failure of President to endorse the EDCA to the Senate for concurrence and ratification," Santiago said.

"We are extremely disappointed that does not been done because the constitutional procedures describe in our Constitution,” she added.

Santiago also found odd the Palace's statements that the president is ready to face impeachment for pushing for the agreement with United States President Barrack Obama without the Philippine Senate's approval.

“To say the president is amenable to impeachment because he did not get the concurrence for the EDCA might be too far, but the point remains, he should have given that EDCA to the Senate,” the senator added.

After hearing the arguments at the Senate, Santiago noted the Senate cannot compel the executive to bring the EDCA to the body.

“We cannot order the president to sent EDCA in the Senate for concurrence, that is not allowed according to the Supreme Court,” Santiago said.

During the hearing, Solicitor General Florin Hilbay maintained that the characterization of the EDCA "as an executive agreement rests on the concept that the president, as commander-in-chief, chief executive and chief architect of foreign relations, has the authority to enter into implementing agreements pursuant to existing treaties."

The foreign relation committee will issue the sense of the Senate resolution hoping the Palace will be enlightened on the matter, Santiago said after the hearing.

“(The Senate resolution)… it will be able to manifest before the Supreme Court what are the attitudes of the Senate as a collectivity and it will also conveyed to the President the sense of commitment of various senators to the EDCA,” the senator said.

“And what shocked everybody during the proceedings in the Supreme Court that EDCA is actually n effect Because wala na palang kailangan pa, kapag sinabi sulatan doon na kung sino ang nagpirma doon, pirmahan na sila, in effect na kaya walang pakialam ang Senado, balewala na kami,” Santiago noted.

Re-examining MDT

Dean Merlin Magallona, of the University of the Philippines College of Law, reiterated that the EDCA violated Article XVIII, Section 25 of the Constitution which says that foreign military bases, troops or facilities “shall not be allowed in the Philippines except under the a treaty duly concurred in by the Senate.”

Under the constitutional mandate, Magallona said the Senate concurrence on a treaty of such nature becomes the Constitutional devise by which a treaty in the nature of EDCA may be saved from Section 25, Article XVIII as a prohibition.

Under the present circumstances, the Senate is confronted with the reality that this constitutional mandate must now apply as a prohibition in the absence of EDCA embodied “in a treaty duly concurred in by the Senate," the dean said.

“In consideration of these factors, instead of regarding the Mutual Defense Treaty (MDT) with biblical awe, we should reexamine it instead from the viewpoint of its dubious status in international law and the perspective of its encroachment into our national sovereignty, not from the angle of the so-called implementing treaty theory,” Magallona said.

Magallona also contradicted the official position taken by the government that the EDCA is an implementing agreement of the MDT.