13 senators say EDCA invalid without Senate concurrence

SAN ANTONIO, Philippines (June 30, 2014) U.S. Marines assigned 1st Battalion 8th Marine Regiment, Bravo Company, conduct a joint amphibious landing exercises with Philippine marines during Cooperation Afloat Readiness and Training (CARAT) Philippines 2014. In its 20th year, CARAT is an annual, bilateral exercise series with the U.S. Navy, U.S. Marine Corps and the armed forces of nine partner nations. (U.S. Navy photo by Mass Communication Specialist 1st Class Gilbert A. Bolibol/Released)

SAN ANTONIO, Philippines (June 30, 2014) U.S. Marines assigned 1st Battalion 8th Marine Regiment, Bravo Company, conduct a joint amphibious landing exercises with Philippine marines during Cooperation Afloat Readiness and Training (CARAT) Philippines 2014. In its 20th year, CARAT is an annual, bilateral exercise series with the U.S. Navy, U.S. Marine Corps and the armed forces of nine partner nations. (U.S. Navy photo by Mass Communication Specialist 1st Class Gilbert A. Bolibol/Released)

MANILA, June 11 (Mabuhay) — Thirteen senators have insisted that the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States is invalid and ineffective unless submitted to the Senate for its concurrence.

In a resolution set to be filed next week, the senators asserted that the power to enter into treaties or international agreements, such as the EDCA, does not rest solely on the President but is shared with the Senate.

In a press statement Thursday, Senator Miriam Defensor Santiago, chairman of the committee on foreign relations, said the resolution is a manifestation that they will not allow the power of the Senate to be eroded.

Aside from Santiago, those who signed as co-authors of the resolution were Senators Juan Edgardo Angara, Pia Cayetano, Joseph Victor Ejercito, Jinggoy Estrada, Teofisto Guingona III, Lito Lapid, Ferdinand Marcos Jr, Sergio Osmeña III, Aquilino Pimentel III, Ralph Recto, Ramon Bong Revilla Jr, and Cynthia Villar.

“Behold the Senate break its silence. The fact that we have not made a hue and cry about the EDCA has apparently been misconstrued as acquiescence,” Santiago said.

If adopted, the resolution will be sent to the Supreme Court as the Senate’s position on the pending question on the validity of the EDCA. The Congress has adjourned its session and will resume on July 27.

The senators, however, clarified in the resolution that they are not forcing the President to submit the EDCA for concurrence, an act the Supreme Court has denounced in its ruling in the 2005 case of Pimentel v. Office of the Executive Secretary.

“By this resolution, the Senate merely takes a definitive stand on the non-negotiable power of the Senate to decide whether a treaty will be valid and effective, depending on Senate concurrence,” the senators said.

The resolution states that Malacañang argues that the EDCA is not a treaty but an executive agreement that does not require Senate concurrence.

The senators said the only constitutional ground for the position taken by the executive is the mere inclusion of the term ‘executive agreement’ as one of items included on the list of cases which the Supreme Court has the power to decide.

They were referring to the Constitution, Article 8, Section 4, which says: “All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc…”

“‘Executive agreement’ is a term wandering alone in the Constitution, bereft of provenance and an unidentified constitutional mystery,” the senators said. They claimed that no provision defined the term, set requirements for it, or established protocol.

Santiago also assailed the view that EDCA is an implementing agreement to the Visiting Forces Agreement (VFA), forged between the Philippines and the US in 2009. Santiago is also head of the joint legislative oversight committee on the VFA.

“It is absurd to claim that the EDCA is an implementing agreement to the VFA, which, in the first place, is alleged to be the implementing agreement to the ancient Mutual Defense Treaty. Moreover, the US does not even recognize the VFA as a treaty,” she said.

The Senate in 2009 adopted Santiago’s resolution urging the Department of Foreign Affairs to either renegotiate or terminate the VFA. A panel headed by the executive secretary has been created to review the VFA, but the treaty was never renegotiated.

The senators said in the resolution that the Constitution is clear and categorical that Senate concurrence is absolutely necessary for the validity and effectivity of any treaty, particularly any treaty that promotes for foreign military bases, troops, and facilities, such as the EDCA.

They cited the following constitutional provisions:

a. “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” (Article 7, Section 21)

b. “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.” (Article 18, Section 25)

Santiago said that the two constitutional provisions on Senate concurrence are specific provisions while the lone provision mentioning an “executive agreement” is a general provision.

“Therefore, the specific provisions on Senate concurrence prevail over the general provision on ‘executive agreement’,” she added.
(MNS)

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