Gov’t defends legality of EDCA before SC

From the Philippine Star (Dec 17): Gov’t defends legality of EDCA before SC

The government has firmed up its position on the constitutionality of the controversial Enhanced Defense Cooperation Agreement (EDCA) with the US in a 42-page memorandum filed with the Supreme Court.

In the memorandum filed last Monday, Solicitor General Florin Hilbay sought the dismissal of the petitions filed by groups led by former senators Rene Saguisag and Wigberto Tañada last May seeking to declare EDCA unconstitutional.

Hilbay, who represents the Palace in the case, reiterated that the agreement is valid and can stand even without the concurrence of the Senate.

The top government lawyer argued that a referral to the Senate could be construed as nullification of the agreement for non-compliance of Article XVIII, Section 25 of the Constitution.

This provision states: “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.”

Hilbay explained that a referral, raised by Associate Justice Marvic Leonen during oral arguments last month, would diminish the President’s powers and in turn adversely affect the country’s standing in the international community.

He again stressed that EDCA is not a treaty as claimed by petitioners, but rather an implementing agreement of the 1951 Mutual Defense Treaty and the 1999 Visiting Forces Agreement.

The SolGen also pointed out that executive agreements, which belong to a distinct category of legal instruments subject to judicial review, are allowed by the Constitution.

“Their view flies in the face of the text of the Constitution, the jurisprudence of the Supreme Court and the long-standing practice of the Executive Department. In fact, executive agreements are mentioned in the Constitution, in Article VIII, Section 4(2) and Article VIII, Section 5(2),” he argued.

Hilbay also cited the Senate’s silence and non-participation in the petitions as an affirmation of the President’s stance that the EDCA is a valid executive agreement.

“To date, the Senate has not issued a resolution expressing its objection to the EDCA, much less authorized any of its members to file a suit on its behalf,” he said.

Cheapening Constitution

He also called the attention of the SC to petitioner’s overuse of the “transcendental importance” factor, cheapening Constitutional safeguards and turning the high court into a venue for “historical grievances and purely symbolic claim.”

The SolGen likewise reiterated that EDCA is necessary in addressing external and internal security issues confronting the country, including the latter’s territorial dispute with China over islands in the West Philippine Sea.

Nullifying EDCA, he warned, “will bring incalculable damage to our national security.”

Hilbay also rejected the petitioners’ allegation that the EDCA would provide tax exemptions to the US.

http://www.philstar.com/headlines/2014/12/17/1403566/govt-defends-legality-edca-sc