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EDCA and Malampaya: Too much concentration of powers

DIRECT FROM THE MIDDLE EAST - Atty. Josephus B. Jimenez (The Freeman) - December 5, 2014 - 12:00am

The Philippine Constitution has aptly divided the powers of government among the executive, the legislative, and the judiciary. The reason for this is both obvious and logical: to avoid too much concentration of powers in any one of the three branches. There are, in fact, the mechanisms of separation of powers and check and balance so that there shall be, more or less, a balance among the three. They are supposed to be all co-equal and coordinate and are expected to work together in harmony because they belong to the same government and they serve the same constituency.

What is happening however to our country today is that somehow an imbalance does exist. The power to enter into a treaty with another sovereign state is a shared function between the executive and the legislative. The executive negotiates and enters into a treaty. But the Senate has the power, by a vote of two-thirds of its members, to ratify  treaties. Of course, the President has the prerogative to enter into executive agreements which do not need a Senate ratification. But to allow foreign troops to enter into our territory, just as the EDCA provides, the Constitution does require a treaty that needs Senate concurrence.

In other words, the President, with all due respect, should have been properly advised by his lawyers, and appropriately informed by the Department of Foreign Affairs about this fundamental policies and norms. We do not see in President Noy, as a person, any tendency to intentionally concentrate powers in the office of the Chief Executive. But this matter that pertains to foreign relations and national defense really needs legislative participation, because of their far-reaching implications. Under his mother's tenure, the Senate in 1991, terminated the Military Bases agreement. It is a historical irony, that the EDCA seems to circumvent the Constitution by being a mere executive agreement and not a full treaty.

The Malampaya Fund is based on a Presidential decree promulgated by a constitutional dictator under a Martial Law regime. An executive order was issued by PGMA to expand the executive discretion in spending the Fund. The solo powers of the President to make decisions on the disbursement of funds are a negation of the powers of Congress to pass the national budget. By making the President the exclusive decision-maker on the use of billions of public fund, is a departure from the fundamental principles of check and balance. Too much concentration of powers in one office and one man is too risky when it falls in the hands of men or women who are not as straight as President Noy.

It is thus our thesis that the EDCA should be terminated. In its stead, a treaty should be negotiated and ratified by the Senate. Also, the decree and executive order on Malampaya Fund, which were issued respectively by Presidents Marcos and Arroyo should now be abrogated. New laws should be passed to return the powers to Congress on treaties (EDCA), and on budget-making (Malampaya). Power corrupts and absolute power corrupts absolutely. Too much concentration of powers in one person is a formula for national disaster. The principle of check and balance should always be respected and upheld. For right reasons and for right purpose.

 

BUT THE SENATE CHIEF EXECUTIVE DEPARTMENT OF FOREIGN AFFAIRS EXECUTIVE MALAMPAYA FUND MARTIAL LAW MILITARY BASES PHILIPPINE CONSTITUTION POWERS PRESIDENT NOY PRESIDENTS MARCOS AND ARROYO
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