MalacaÑang has found an ally in Chief Justice Maria Lourdes Sereno in defending the legality and benefits of its controversial Philippine-United States Enhanced Defense Cooperation Agreement (EDCA) when she said that the country needs the help of the US to improve the country’s military capability amid its dispute with China over the West Philippine Sea.
During oral arguments on the petitions filed by former Senators Rene Saguisag and Wigberto Tañada Jr., Makabayan legislators and civil society groups questioning Edca’s constitutionality on Tuesday, Carpio linked the EDCA to his favorite issue —the territorial dispute of the Philippines with China involving the West Philippine Sea.
“If China evicts our Marines in the West Phil Sea, can we invoke the MDT (Mutual Defense Treaty)?” Carpio asked lawyer Harry Roque, counsel for the petitioner, who answered that the treaty may be invoked.
Carpio said there is no certainty of compliance on the part of the United States, citing the US supposed policy of not meddling in the territorial rows.
Carpio, who has been vocal against China’s territorial claims on the West Philippine Sea, presented an 1899 map of the Philippines issued by the US and which includes Scarborough Shoal as part of its territory.
Although the US supposedly recognizes the country’s territories that were being claimed by China, or in the case of Scarborough Shoal, occupied, Carpio noted that it was the US view that prevailed on whether Manila could invoke the US-PH Mutual Defense Treaty.
Carpio asked Roque if he would recommend the increase in defense spending, enter into an alliance with other regional powers, strengthen relations with the United States or sue China in the international court.
Roque said he would advise the President to take all possible steps, except strengthening Philippine alliance with the United States, saying in the eyes of some countries such as China, “we are considered a factotum of the US, mere lackeys for our former colonial master.”
Nonetheless, Roque agreed with Carpio that the Philippines should pursue a more independent stand similar to Vietnam’s.
Sereno, for her part, said there is a need for Manila to seek the help of Washington in improving the country’s military capability amid the ongoing tension on territorial dispute with China over the West Philippine Sea.
Subjecting lawyer Rachel Pastores, counsel of one of the petitioners, to questioning, Sereno noted that Armed Forces leadership recognized necessity of the EDCA with the US in order to fill up the current military inadequacies as well as in achieving the AFP’s modernization program.
“This is the AFP saying that we are looking this as an approach at filling our capabilities.’ Is it grave abuse of discretion for a government to ask an ally, with whom you have a mutual defense agreement with since the 1950s, to fill the gaps? Promoting long-term modernization—is that bad for the AFP?” Sereno asked.
“The fact that we brought this (maritime dispute) before the ITLOS (International Tribunal for the Law of the Sea), isn’t that a fact that we must explore all means? Isn’t that the greatest threat when our fishing grounds are no longer accessible to us? I see our islands in the West Philippine Sea being overtaken. What is wrong with prepositioning? How long does it take for a missile to reach Palawan?” Sereno asked.
The Chief Justice believes that the EDCA is a tool to raise awareness in the international community about our claims over the West Philippine Sea.
“Helping maintain and develop additional maritime security, maritime domain awareness’—so we’re talking about the West Philippine Sea problem here because we have no problem with the eastern side (of our islands), it’s with the western side… we are still in the process in making the international community aware that we are asserting our right under the UNCLOS (United Nations Convention on the Law of the Sea),” she said.
The chief magistrate also opined that it is still premature for the petitioners to challenge the EDCA merely on the basis of fears and apprehensions that are mere “speculations” and have “no basis in fact.”
She also noted that there was no violation of any of the provisions of the agreement nor any offense committed on the part of the US under the terms of the agreement.
“We have a problem here... unless the facts [are before us], and we are not a trier of facts, we cannot presume the factual situation; we cannot paint for the people a situation where the facts are not yet presented before us,” she said.
“In other words, if we are going to presume falsity on the part of the Philippine government, then we rule that the EDCA is unconstitutional, but we don’t have that legal authority especially that there has been no hearing (on the facts),” the Chief Justice stressed.
But Pastores argued that the “totality” and “full text” of the EDCA show that the agreement is “lopsided” in favor of the US and to the detriment of the Philippines’ national sovereignty and territorial integrity.
“The gamut of authorities granted to US forces . . . it’s practically surrendering to the US the sovereignty of the Philippines,” Pastores said.
The SC set the continuation of the oral arguments on November 25 when the Office of the Solicitor General (OSG) will take the floor to defend the constitutionality of EDCA.
Several justices also expressed the idea that the EDCA should be returned to the Senate for furhter scrutiny and concurrence.
Associate Justices Marvic Leonen, Jose Perez and Bienvenido Reyes and even the Chief Justice hinted that the SC, for now, might not be the proper forum to debate on the merits of Edca, but the Senate, which could be asked to review the agreement and that the petitioners should raise their objections before the senators.
“It is not even better for this court to see EDCA take its shape and then if there is a violation of law bring the matter to the proper forum,” Sereno commented.
Leonen said arguments against Edca “should be given to the Senate who are your representatives.”
Under the Constitution, the Senate is empowered to ratify treaties that the country enters into.
The petitioners’ lawyers said the Court could still rule on Edca’s constitutionality and whether the executive branch committed grave abuse of discretion by agreeing to the pact.
http://manilastandardtoday.com/2014/11/20/sc-justices-split-on-us-defense-aid-in-sea-row/
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