jugular issue on edca _ inquirer opinion artemio panganiban

7/24/2019 Jugular Issue on Edca _ Inquirer Opinion Artemio Panganiban

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Jugular issue on Edca

Of the many issues raised by the petitioners challenging the constitutionality of the

Enhanced Defense Cooperation Agreement (Edca) in the Supreme Court, the jugular, I

think, is the nature and extent of our governments control over the agreed locations

(ALs).

Brief background.The Edca was signed on April 28, 2014, by the Philippines and the

United States ostensibly to implement the Mutual Defense Treaty (MDT) and the Visiting

Forces Agreement (VFA) earlier entered into by the two countries on Aug. 30, 1951 and

Feb. 10, 1998, respectively.

The MDT aims to maintain and develop their individual and collective capacity to resist

armed attack while the VFA seeks to strengthen their present efforts to collective

defense for the preservation of peace and security. Per its Art. I, the Edca deepens

defense cooperation between the Parties and maintains and develops their individual and

collective capacities, in furtherance of Article II of the MDT.

Both the MDT and the VFA had been concurred in by our Senate and upheld as not

unconstitutional by our Supreme Court. However, the Edca had not been submitted to

the Senate for ratification.

Due to my limited space, I will no longer explain the procedural questions (like the

petitioners alleged lack of legal standing) and policy issues (like the alleged lack of

assurance that the US will actually come to the aid of the Philippines in case of an

invasion by China).

Agreed locations.Under the Edca, US armed forces, US contractors and others as

mutually agreed, shall have the right to access and use[ALs that] may be listed in an

annex to be appended to this Agreement.

The Edca allows US forces, contractors, vehicles, vessels and aircraft to conduct the

following activities [inside the ALs]: training; transit; support and related activities;


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refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels

and aircraft; temporary accommodation of personnel; communications; prepositioning

of equipment, supplies and materiel; deploying forces and materiel; and such other

activities as the Parties may agreewithout rental or similar costs[but the] US forces

shall cover their necessary operational expenses

Further, the United States shall have operational control of [ALs] for constructionactivities[but the Philippines] shall have access to the entire area of the [ALs]

consistent with operational safety and security requirements

Jugular issue.Petitioners argue that by yielding to the US forces the operational

control of ALs for construction activities without payment of rentals, taxes and other

costs, the Edca constitutesan unconscionable sellout of our sovereignty and

deprives the Philippines of its police, eminent domain and taxation powers.

Our Constitution states that foreign military bases, troops, or facilities shall not be

allowed in the Philippines except under a treaty duly concurred in by the Senate

Petitioners contend that the ALs are really disguised military bases without the benefit of

a treaty concurred in by the Senate, because they can contain houses or barracks to

accommodate thousands of troops; they contain weapon armories, arsenals or silos; they

have secure storage buildings for prepositioned supplies and war materiel; they have

their own facilities for refueling, bunkering, and repairing warships or aircraft; they havetheir own perimeter wall which will prohibit unauthorized entry; they have their own

telecommunication systems; and there are even launching pads or sites for the

deployment of troops and war materiel to other countries. In fact, they even have

separate facilities for water, electricity and other utilities

The government counsel, Solicitor General Florin T. Hilbay, counters that Edca, by its

own express terms, is only an executive agreement to implement the MDT and the VFA,

and not a treaty that needs Senate ratification.

He explains that Edca was entered into pursuant to the Presidents constitutionally-

granted exclusive military and diplomatic power and the Court should not render the

President helpless or impair his ability to set up a national security apparatus in the face

of clear, present, and verified reports of activities that endanger the

integrity of the Philippine State.


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On the petitioners contention that the United States could deploy nuclear weapons in

the ALs in violation of our Constitution, Hilbay points to Art. IV-6 of Edca plainly saying

that the prepositioned materiel shall not include nuclear weapons. He pits petitioners

allegation of disguised military bases against the Edcas provision clearly conceding the

Philippines ownership of the ALs and the governments assurance that our country

retains sovereignty over them.

In deference to the sub judice rule, I shall not comment on these arguments, except that

I believe the case will turn on how the parties explain the nature and extent of control

that our government exercises over the ALs.

I also think that if this were a US Supreme Court case, the conservatives would decide

based strictly on the textual provisions of the Constitution and original intent of its

framers. On the other hand, the liberals would interpret the Charter according to the

contemporary needs and paramount wellbeing of our people. (Please refer to my columnon legal philosophy on 10/26/14.)

I shall eagerly await the decision and separate opinions of our justices, which may open

windows to their ideological or philosophical leanings.

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