The constitutionality of the EDCA: Good or evil?
WHAT MATTERS MOST - Atty Josephus Jimenez (The Freeman) - January 14, 2016 - 9:00am

We concur with the majority opinion of the Honorable Supreme Court, voting 10:4:1, upholding the constitutionality of the EDCA or the Enhanced Defense Cooperation Agreement. In effect, the highest court of the land has ruled that the EDCA is not a treaty. Therefore, it does not require the mandated ratification by the Senate. The High Tribunal declared that the EDCA is a mere executive agreement, which, among others, merely implements the Mutual Defense Treaty and the Visiting Forces Agreement. Thus, the court dismissed the consolidated petitions filed by former senators Wigberto Tanada and Rene Saguisag, and Bayan Muna Representatives Neric Colmenares and Carlos Zarate.

This column believes that the ruling of the majority of ten, penned by the Honorable Chief Justice Maria Lourdes Sereno is more in keeping with the letter and spirit of the fundamental law of the land. The nine associate justices who concurred with the learned treatise of CJ Sereno are Senior Associate Justice Antonio Carpio and Associate Justices Presbitero Velasco, Diosdado Peralta, Lucas Bersamin, Mariano del Castillo, Martin Villarama Jr, Jose Perez, Jose Mendoza, and Bienvenido Reyes. Justices Peralta and Bersamin are my neighbors in BF Homes and were my fellow Law professors and Bar Reviewer before their elevation to the High Court. I have always followed their decisions.

The four justices who dissented were associate justices Teresita Leonardo-de Castro, last year's chair of the Bar examinations, together with Justice Arturo D. Brion, a former colleague in the DOLE and a Bar topnotcher when we took the Bar together way back, justices Estela Perlas-Bernabe and Marvic Leonen, both appointees of President Aquino. Justice Francis Jardeleza, my former boss in San Miguel Corporation inhibited himself, (he was the general counsel and I was the deputy general counsel). He was the former solicitor general who defended the constitutionality of EDCA. I agree that EDCA is good for our country in the long run, given the realities of contemporary geopolitics.

This decision, to our mind, is a major victory of this administration because it vindicates the stand of the president that the executive department should be given maximum leeway and all the room for flexibility. As commander-in-chief of all armed forces, and as the over-all leader who wields command responsibility for the security of the state, Malacañang submits that the powers of the president to enter into executive agreements and to undertake measures to secure the defense of the people and the nation should not be hampered by political considerations. Thus, such executive powers should not be diluted, hampered, or stifled by Senate review. I seldom agree with this administration but this time I do concur with this view.

The Supreme Court, by upholding the EDCA, has, in fact, rebuffed the Senate for issuing Resolution No. 105 which earlier declared that it is a treaty in equal category as the Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA), which all needed Senate ratification. In the decision of the majority, the Supreme Court stressed that EDCA is not the legal instrument that allowed US troops or facilities that allowed the presence of foreign military bases, troops or facilities. It is the VFA that allowed that. This ruling is a big boost to the Philippine-US relations especially in the light of Chinese continuing threats against our territories, as well as against international waters.

The decision boldly held: "No Court can tell the president to desist from choosing an executive agreement over a treaty to embody an international agreement. In the field of international affairs, the president must be given a larger measure of authority and wider discretion, subject only to the least amount of checks and restrictions under the Constitution." Thus, the principles of checks and balances should not be used to weaken our commander-in-chief. We may attack him for errors in judgments or for the mediocrity and excesses of his underlings. But when it comes to the security of our nation, we should uphold his powers to defend us all. National interest is what matters most.



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