Posted to InterAksyon (May 26):
FULL TEXT | 1st petition assailing EDCA constitutionality
REPUBLIC OF THE PHILIPPINES
SUPREME COURT
MANILA
RENE A.V. SAGUISAG WIGBERTO E. TAÑADA, FRANCISCO “DODONG” NEMENZO, JR, SR. MARY
JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN “STEVE” SALONGA, H. HARRY L. ROQUE,
JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR.
ROLAND SIMBULAN and TEDDY CASIÑO Petitioners,
-versus-
EXECUTIVE SECRETARY PAQUITO OCHOA, DEPARTMENT OF DEFENSE
SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL
ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO
ABAD,ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T.
BAUTISTA, Respondents,x------------------------------------------------x
PETITION FOR CERTIORARI AND PROHIBITIONWITH PRAYER FOR THE
ISSUANCE OF A WRIT OF PROHIBITORY INJUNCTION AND/ OR TEMPORARY RESTRAINING
ORDER
PREFATORY STATEMENT
“September 16, 1991, may well be the day when we in this Senate found the soul,
the true spirit of this nation because we mustered the courage and the will to
declare the end of foreign military presence in the Philippines”
“Therefore I vote No to this treaty, and if it were only
possible, I would vote 203 million times No.” - Senate President Jovito R.
Salonga
The postcolonial history of the relations between Philippines and of the United
States of America is akin to that of an unequal and exploitative love affair.
Without fail, the Philippines
takes on the role of the dedicated lover, whose undying devotion is
reciprocated with abuse and exploitation by its partner; The unhappy and often
disadvantageous results for the Philippines,
of this unequal and unseemly relationship, are demonstrated often enough in
treaties and agreements on trade and defense it enters into with the US.
There was one shining moment however, when the Philippines
grew a backbone and finally decided that it will no longer be a doormat for the
US.
On September 16, 1991, despite pressure from the Executive
and the US government itself, and risking their political careers, 12 Senators
rejected a proposed US-RP Treaty of Friendship, Cooperation and Peace that
would have extended to another 10 years one of United States’ most strategic
bases, the Subic Naval Base (at this point, the Clark Air Force Base had
already been closed due to the eruption of Mount Pinatubo).
The Senate, led by then Senate President Jovito R. Salonga,
voted 12-11 against the proposed treaty, thus ending 470 years of foreign
military presence in the Philippines.
The vote was prompted by a groundswell of nationalism with
the renewed assertion of national sovereignty and the intensifying resistance
to US
military presence in the country. It was also a signal that the Philippines was ready to rid itself of US military
presence.
Sadly, this sense of nationalism and desire for genuine independence
has been steadily eroded and even eclipsed. From the Visiting Forces Agreement
(VFA) and the Mutual Logistics and Support Agreement (MLSA) which allowed the
return and servicing of US military forces and war materiel inside Philippine
territory,to the secret negotiations and rushed passage of the Enhanced Defense
Cooperation Agreement (EDCA), the lack of the Philippine government’s resolve
to uphold and protect Philippine sovereignty and national interest has never
been more apparent.
The EDCA is a clear departure from and reversal of the stand
taken by the Philippine Senate in 1991. Its terms and conditions put the
country in an even worse situation than what would have transpired if the US-RP
Treaty of Friendship, Cooperation and Peace that was sent to the Senate for
ratification had not beenrejected.
The Executive has circumvented the correct and brave stand
taken by the Philippine Senate in 1991 in refusing to renew the RP-US bases
treaty by illegally entering into the EDCA.
This agreement will allow the US government to use Philippine
military bases, essentially allowing them to build structures, store as well as
preposition weapons, defense supplies and materiel, station troops, civilian
personnel and defense contractors, transit and station vehicles, vessels,
and aircraft. This will effectively allow them to establish and operate defacto
military bases anywhere on Philippine soil, minus the cost of paying for one.
Contemporary geopolitical realities are being used as
justification for the rush to an agreement like the EDCA: the behemoth that is China rising to
a new and expanded sense of its historic purpose and place as a civilization
and as an emerging world power, and the economic and natural resources its
rapidly growing economy needs to turn vision into reality.
As the center of Chinese expansionism straddles Philippine
territories in the West Philippine Sea, the EDCA is being touted as the
sure-fire deterrent to the Chinese dragon; it is also being pictured as our
best hope for developing credible minimum defense capability for the Armed
Forces of the Philippines (AFP), even if there is no provision at all in the
agreement expressly obligating the US armed forces to transfer military
hardware and technology to the AFP in exchange for the accommodations granted
by the Philippines to the United States under the agreement.
At the very least, the Philippine government must comply
with Constitutional requirements when entering into international treaties and
agreements such as the EDCA.
More than this, the Philippine government must negotiate the best possible
terms for a just, fair and equitable agreement with the national interest as a
paramount consideration should one be found necessary.
In both respects, the Executive has miserably failed. Not
only is the EDCA a violation of the Philippine Constitution, it also does not
provide any substantial, long-term real benefit, much less distinct advantage
or improvement in our position vis-à-vis the United States.
Hence, Petitioners call upon the Honorable Court to wield its supreme
Constitutional duty, to declare the EDCA as unconstitutional for patently
violating the 1987 Constitution.
I. NATURE OF THE ACTION
1. Petitioners, by counsel, respectfully
file this Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court, and in accordance with
Section 1, Article VIII of the 1987 Constitution, Public Respondents having committed grave abuse of
discretion amounting to lack or excess of jurisdiction when they entered into the Enhanced Defense
Cooperation Agreement on behalf of the Philippines, with the government of the United States of
America.
2. Petitioners pray
that the Honorable Court declare that Public Respondent Defense Secretary committed grave abuse of discretion amounting
to lack or excess of jurisdiction when he entered into the Enhanced Defense Cooperation
Agreement on behalf of the Philippines, and that the Honorable Court declare that the Enhanced
Defense Cooperation Agreement is unconstitutional for patently violating various provisions of the
1987 Constitution and for being grossly contrary to the national interest.
3. Petitioners also
pray that after due hearing and deliberation, this Honorable Court
permanently enjoin Public Respondents
from funding and implementing the agreement in question.
4. Finally, Petitioners pray that
the Honorable Court, pending a final resolution on this Petition,
issue a preliminary prohibitory
injunction and/or a Temporary Restraining Order, prohibiting Public Respondents, and anyone acting under their
authority, stead, or behalf, from implementing the provisions of the Enhanced Defense
Cooperation Agreement during the pendency of the case.
II.TIMELINESS OF THE PETITION
5. On April 28, 2014,
the Enhanced Defense Cooperation Agreement was signed by Department
of National Defense Secretary Voltaire
Gazmin for the Government of the Republic of the Philippines, and by US Ambassador for the Philippines
Philip Goldberg for the Government of the United States of America.
6. Under Rule 65 of
the 1997 Rules of Civil Procedure, Petitioners have sixty (60) days from
the date of the questioned acts or the
date of receipt of the questioned document within which to file this Petition. Counting from 28 April 2014,
Petitioners have until 27 June 2014 within which to file this Petition. Hence, Petitioners are filing
the instant Petition on time.
7. The corresponding
docket and other lawful fees and deposit for costs are paid simultaneously
with the filing of this Petition.
8. Petitioners
respectfully submit as ANNEX A a copy of the “Enhanced Defense Cooperation Agreement” in compliance with Rule 65 of the
1997 Rules of Civil Procedure.
9. Petitioners
respectfully submit that since the “Enhanced Defense Cooperation Agreement” is
an official act of the Executive
Department, it is subject to judicial notice under Section 1, Rule 129 of the Rules of Court, such that there is no
need for the submission in the instant proceeding of a certified true copy of the “Enhanced Defense
Cooperation Agreement.”
III. THE PARTIES
10. Petitioners Rene A.V. Saguisag and
Wigberto E. Tañada are former Senators of the Republic of the Philippines
who were part of the “Magnificent 12” members of the Upper House who
voted in 1991 against a proposed
treaty that would extend the stay of the US
military bases in the Philippines for another 10 years.
11. Petitioner
Francisco “Dodong” Nemenzo, Jr. is a former President of the University of
the Philippines, Filipino citizen and
taxpayer.
12. Petitioner
Pacifico A. Agabin is a former Dean of the University of the Philippines
College of Law, the incumbent general
counsel of the IBP, Filipino citizen and taxpayer.
13. Petitioner Sr.
Mary John Mananzan is a former President of St. Scholastica’s College, a
current Executive Director of its
Institute for Women’s Studies, and a Filipino citizen and taxpayer.
14. Petitioners
Esteban “Steve” Salonga, H. Harry L. Roque, Jr., Evalyn Ursua and Edre U.
Olalia are lawyers, members in good
standing of the Integrated Bar of the Philippines (IBP), Filipino citizens
and taxpayers.
15. Petitioners Dr. Carol
Pagaduan-Araullo and Dr. Roland Simbulan are activists, Filipino citizens
and taxpayers.
16. Petitioner Teddy
Casiño is a former party-list representative at the House of Representatives,
an activist, Filipino citizen and
taxpayer.
17. All Petitioners
may be served with notices, pleadings and other processes of this Honorable
Court through their counsel, the
Roque & Butuyan Law Offices, with address at 1904 Antel
Corporate Center,
121 Valero Street,
Salcedo Village,
Makati City.
The Public
Respondents are the following public officials:
18. Public Respondent
Executive Secretary Paquito Ochoa, Jr. is being sued in his official
capacity as the Executive Secretary to
the President, and as the representative of the Executive Department that will implement and execute the “Enhanced
Defense Cooperation Agreement.” He is,inter alia, tasked, subject to the control and
supervision of the President, to carry out the functions assigned by law to the Executive Office. He may be served
with summons, notices, pleadings and other processes of this Honorable Court at at the Office of
the Executive Secretary, Premier Guesthouse, Malacañang Compound, San Miguel, Manila.
19. Public Respondent
Secretary Voltaire Gazmin is being sued in his official capacity as the Secretary of the Department of National
Defense, and who signed the “Enhanced Defense
Cooperation Agreement” for the Government of the Republic of the Philippines.
Further, under the EDCA, the Department
of National Defense is the “designated authority” of the Philippines. He
may be served with notices, pleadings
and other processes of this Honorable Court at the Department of National Defense, DND Building,
Segundo Ave.,
Camp General Emilio Aguinaldo Quezon City,
Philippines 1110.
20. Public Respondent
Secretary Albert Del Rosario is being sued in his official capacity as
the Secretary of the Department of
Foreign Affairs, which is, inter alia,the prime agency of government responsible for the pursuit of the State's
foreign policy. He may be served with summons, notices, pleadings and other processes of this Honorable
Court at 2330 Roxas Boulevard,
Pasay City.
21. Public Respondent
Secretary Florencio Abad,is being sued in his official capacity as Secretary
of the Department of Budget and
Management (hereinafter DBM), which isthe department charged with the release of public funds for programs of
the Philippine government such as the implementation of the Enhance Defense Cooperation Agreement. He
may be served with summons and other papers
and processes of this Honorable Court at the DBM, Gen. Solano St., San Miguel, Manila.
22. General Emmanuel T. Bautista is
being sued in his official capacity as the Chief of Staff of the Armed Forces of the Philippines,
which under the EDCA is the Philippine government entity that will provide the “agreed locations.” He may be
served with summons, notices, pleadings and other processes of this Honorable Court at Office
of the Chief of Staff, Camp General Emilio Aguinaldo, Quezon
City, Philippines,
1110.
IV. STATEMENT OF FACTS AND ANTECEDENT PROCEEDINGS
23. In 1951, the Philippines and
the United States of America (US) entered into the Mutual Defense Treaty (MDT) a copy of which is attached as
ANNEX B, which obligates both parties to maintain and develop their individual and collective
defense capabilities against any potential armed attack from enemies.
24. On February 10, 1998 the Philippines and the US
entered into the Visiting Forces Agreement
(VFA) a copy of which is attached as ANNEX C, a Status of Forces
Agreement for the purpose of supposed
visits of US
personnel engaged in joint military exercises and other activities as may
be approved by the Philippine
Government. The counterpart agreement, a copy of which is attached as ANNEX D, for Philippine personnel visiting
the United States,
was signed on October 9, 1998. The VFA
was ratified by the Philippine Senate on May 27, 1999.
25. In 2002, the
Philippines and the US entered into the Mutual Logistics and Support
Agreement (also known generically as
Acquisition and Cross-Servicing Agreement) for the purpose of enabling and facilitating the reciprocal provision of
logistical support, supplies and services between the armed forces of the two Parties.
26. Concerned citizens, civil society organizations and
multi-sectoral groups subsequently filed with
the Supreme Court various petitions challenging the constitutionality of
the VFA. In October 10, 2000, the first
challenge was dismissed by the Supreme Court in the case of Bayan vs. Zamora. . A second challenge was brought in the case of Sombilon
vs. Romulo , which was dismissed by the Supreme
Court on February 11, 2009.
27. In 2009, the United States
foreign policy took a definitive turn from its former focus and emphasis on the Middle East towards the
Asia-Pacific Region termed “pivot to Asia” .
28.In August 2013,
the Governments of the Philippines
and the United States of
America began negotiations on the Enhanced Defense
Cooperation Agreement (EDCA). Several rounds of
negotiations were held thereafter.
29.Eight months
later, both Parties held the eighth and final round of negotiations on the
EDCA.
30.On April 28, 2014,
immediately prior to the arrival of US President Barack Obama for his
first state visit to the Philippines, the EDCA was signed by Department
of National Defense Secretary Voltaire
Gazmin for the Philippines
and by US Ambassador to the Philippines Philip Goldberg for the US government.
31.The content of the
new agreement was only made public in the evening of April 29, 2014, or a
full day after it was signed, after the
departure of US President Obama, and after public clamor for the document to be released.
32. On 02 May 2014, Department of National Defense Undersecretary and the Philippines’
chief negotiator Pio Lorenzo
Batinostated that “EDCA is just the enhancement of that capacity as joint exercises are envisioned to do.” Usec.
Batino further said that “This policy was reaffirmed in the Visiting Forces Agreement (VFA) … The EDCA
just further implements the policies already agreed [upon].” Usec. Batino concluded that “Thus,
the EDCA does not need ratification.”
33.On 06 May 2014,
Department of Foreign Affairs spokesman Charles Jose stated that as far as
the DFA is concerned, the EDCA, is an
“executive agreement.”
V.GROUNDS FOR THE PETITION
34.This Petition is for Certiorari and
Prohibition. Petitioners submit that Public Respondent Defense Secretary Gazmin committed grave abuse of
discretion amounting to lack or excess of jurisdiction in entering into the Enhanced Defense
Cooperation Agreement on behalf of the Government of the Republic of the Philippines.
35.Further,
Petitioners contend that the EDCA is unconstitutional for blatantly violating
various provisions of the Philippine
Constitution and for being contrary to the national interest.
36.Petitioners do not
have at their disposal any appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, except the
instant Petition for Certiorari, and Prohibition, and Mandamus with Prayer for the Issuance of a
Writ of Preliminary Prohibitory Injunction and/or Temporary Restraining Order.
37.The signing and/or
implementation of the EDCA during the litigation will definitely work injustice
to Petitioners and would render judgment
in the instant petition moot, academic and ineffectual.
38.The acts of Public
Respondents, if not immediately restrained or enjoined, will cause grave
and irreparable injury to Petitioners as
Filipino citizens, and taxpayers, and the entire Filipino people as the violates the Philippine Constitution, and
Philippine sovereignty, resulting in the unlawful use of public funds.
39.For the same
reasons, the commission and continuance of the acts complained of during
the pendency of this petition will work
injustice to Petitioners, and to the people of the Republic of the Philippines. Petitioners pray for the exemption
from the posting of a bond in view of the nature of the instant petition.
40.This petition is
anchored on the following grounds:
VI. ARGUMENTS PROCEDURAL AND JURISDICTIONAL ISSUES
I.THE CONTROVERSY IS SUFFICIENTLY RIPE FOR THE HIGH COURT’S
ADJUDICATION.
II.THERE IS AN ACTUAL CASE OR CONTROVERSY, WHICH CALLS FOR THE EXERCISE OF
JUDICIAL POWER.
III.THE PETITIONERS HAVE STANDING TO FILE THE INSTANT PETITION.
SUBSTANTIVE ISSUES(GROUNDS FOR THE PETITION)
I.THE PUBLIC RESPONDENT DEFENSE SECRETARY COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SIGNING THE ENHANCED DEFENSE
COOPERATION AGREEMENT (EDCA), PURPORTEDLY DESIGNED TO FURTHER THE MUTUAL
DEFENSE TREATY BETWEEN THE PHILIPPINES AND THE UNITED STATES, ON THE GROUND THAT
IT CANNOT FURTHER A TREATY THAT IS BOTH UNCONSTITUTIONAL AND CONTRARY TO THE
INTENTS AND PURPOSES OF THE UNITED NATIONS CHARTER, TO WHICH BOTH COUNTRIES ARE
PARTIES.
A.THE MDT, A CREATURE OF A DIFFERENT ERA, HAS ALREADY BEEN SUPERSEDED BY THE
1987 CONSTITUTION AND ITS EXPRESS REJECTION OF WAR AS A NATIONAL POLICY.
B.THE MDT ALSO CONTRADICTS OUR OBLIGATIONS AS A MEMBER OF
THE UNITED NATIONS, UNDER WHOSE OWN CHARTER THE USE OF FORCE AS A MEANS TO
SETTLE DISPUTES BETWEEN AND AMONG STATES HAS BEEN OUTLAWED.
C.ASSUMING ARGUENDO THAT THE MDT IS CONSTITUTIONAL,THE EDCACANNOT BE CONSIDERED
TO BE A FURTHER IMPLEMENTATION OF POLICIES PREVIOUSLY AGREED UPON IN THE MDT
AND IN THE VFA.
II.THE PUBLIC RESPONDENT DEFENSE SECRETARY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION WHEN HE SIGNED THE EDCA BECAUSE IT VIOLATES
THE PROHIBITION ON NUCLEAR WEAPONS IN THE COUNTRY AND DEPRIVES THE SUPREME
COURT OF ITS CONSTITUTIONAL PREROGATIVES:
A.IT VIOLATES ARTICLE II, SECTION 8 OF THE 1987 CONSTITUTION, WHICH PROHIBITS
NUCLEAR WEAPONS IN THE COUNTRY.
B.IT DEPRIVES THE SUPREME COURT OF ITS EXERCISE OF CONSTITUTIONAL POWERS
PROVIDED FOR UNDER ARTICLE VIII, SECTION 1 OF THE 1987 CONSTITUTION.
III.THE PUBLIC RESPONDENT DEFENSE SECRETARY COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY SIGNED THE EDCA SINCE THE
EDCA IS CONTRARY TO NATIONAL INTEREST AND IS IN FACT, HIGHLY DISADVANTAGEOUS TO
IT:
A.ALTHOUGH IT WAS SIGNED IN THE CONTEXT OF HEIGHTENED
TENSION WITH CHINA AND DANGLED AS PROOF OF AMERICA’S “IRONCLAD” COMMITMENT TO
DEFEND THE PHILIPPINES AGAINST CHINESE EXPANSIONISM, THERE IS NO ASSURANCE THAT
THE UNITED STATES WILL ACTUALLY COME TO THE AID OF THE PHILIPPINES IN CASE OF
AN INVASION BY CHINA.
B.ASSUMING ARGUENDO THAT THE MUTUAL DEFENSE TREATY IS
CONSTITUTIONAL, IT IS INAPPLICABLE IN THIS CIRCUMSTANCE AS THE WEST PHILIPPINE
SEA IS NEITHER A METROPOLITAN TERRITORY NOR ISLANDS IN THE PACIFIC AS PROVIDED
IN THE MDT.
C.THE TERMS AND PROVISIONS OF THE EDCA ARE AN AFFRONT TO THE
NATIONAL INTEREST AS THEY ARE EVIDENTLY ONE-SIDED IN FAVOR OF THE UNITED STATES
OF AMERICA, WHEN VIEWED FROM SIMILAR OR ANALOGOUS AGREEMENTS ENTERED INTO BY
THE LATTER WITH SOME OF ITS OTHER ALLIES.
IV.IN SIGNING THE EDCA ON BEHALF OF THE PHILIPPINE GOVERNMENT, PUBLIC
RESPONDENT DEFENSE SECRETARY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION BECAUSE IN DOING SO, HE MADE THE PHILIPPINES A
TARGET OF US ENEMIES PURSUANT TO THE INTERNATIONAL HUMANITARIAN LAW PROVISION
ON ITS GEOGRAPHIC APPLICATION.
V. THE PUBLIC RESPONDENT DEFENSE SECRETARY COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SIGNING THE EDCA,
AND/OR IN SUBSEQUENTLY FAILING TO FORMALLY TRANSMIT THE EDCA TO THE
PHILIPPINE SENATE FOR ITS CONCURRENCE, SINCE THE EDCA IS A TREATY – AND NOT
MERELY AN EXECUTIVE AGREEMENT – AND MUST THEREFORE COMPLY WITH THE
CONSTITUTIONAL REQUIREMENTS FOR THE VALIDITY OF A TREATY.
A.SECTION 25, ARTICLE XVIII OF THE 1987 CONSTITUTION REQUIRES THAT ANY
FOREIGN MILITARY BASES, TROOPS, OR FACILITIES SHALL NOT BE ALLOWED IN THE
PHILIPPINES EXCEPT UNDER A TREATY DULY CONCURRED IN BY THE SENATE.
B.SECTION 25, ARTICLE XVIII OF THE 1987 CONSTITUTION APPLIES
TO THE EDCA SINCE THIS CONSTITUTIONAL PROVISION MAKES NO DISTINCTION WHETHER
THE FOREIGN MILITARY BASES, TROOPS, OR FACILITIES ARE TEMPORARY, TRANSIENT OR
PERMANENT IN NATURE.
C.THERE IS GREATER REASON TO CONSIDER EDCA A TREATY AS
THE PRESENCE OF AMERICAN BASES, FORCES, OR FACILITIES UNDER IT IS OF A
PERMANENT NATURE, AND NOT MERELY TEMPORARY.
VII.DISCUSSIONS
PROCEDURAL AND JURISDICTIONAL ISSUES
18.It is well-settled
that like almost all powers conferred by the Constitution, the power of
judicial review is subject to
limitations, to wit:
“Judicial review, which is merely an
aspect of judicial power, demands the following:
(1) there must be an actual case calling
for the exercise of judicial power;
(2) the question must be ripe for
adjudication; and
(3) the person challenging must have
“standing”; that is, he has personal and substantial interest in the case, such that he has sustained or will
sustain direct injury.”
There is an actual case or controversy involving a conflict of legal
rights
19. It is a settled doctrine that the
courts shall only act when there is an actual case or controversy involving a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial adjudication.
20. The opposite
claims involved in this case are the constitutional power of the Senate to
concur to a treaty or international
agreement and the power of the President as the head of state in the realm
of foreign policy.
21. While Petitioners
recognize the powers and prerogatives of the President as “the sole organ
and authority in external relations and
is the country’s sole representative with foreign nations” andas the chief architect of foreign policywho acts
as the country’s mouthpiece with respect to international affairs vested with the authority to deal with
foreign states and governments, extend or withhold recognition, maintain diplomatic relations,
enter into treaties, and otherwise transact the business of foreign relations,” Petitioners are
equally aware that such power of the President is not absolute.
22. Hence, under
Section 21 of Article VII, the Constitution regulates such foreign relations
powers of the President when it provides
that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the members of the Senate."
23.Also, Section 25
of the Transitory Provisions of the Constitution underscored the importance of
the concurrence of the Senate, to
wit:Sec. 25. 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.
24.Conspicuously, the
EDCA was framed as an agreement in furtherance of the Mutual Defense Treaty between the Republic of the
Philippines and the United States of America (the “MDT”), signed at Washington on August 30, 1951, and the
Agreement between the Government of the Republic of t he Philippines and the
United States of America Regarding the Treatment of United States Armed Forces Visiting the Philippines (the “VFA”),
signed in Manila of the tenth day of February 1998.
25.EDCA is
purportedly aimed at deepening defense cooperation between the Philippines and
the United States of America “in
furtherance of Article II of the MDT, which states that “the Parties separately and jointly by self-help and
mutual aid will maintain and develop their individual and collective capacity to resist armed attack,”
and within the context of the VFA.”
26.Thus, by framing
the EDCA as an agreement in furtherance of the MDT and VFA, the President
has effectively rendered nugatory the
constitutional requirement for the concurrence of the Senate for the validity and effectivity of a treaty or
international agreement.
27.Contrary to the
interpretation of the Office of the Chief Executive, the MDT cannot be invoked
by the Philippines in case of a
conflagration in the West Philippine Sea as it is only applicable in case
of an armed attack against our “metropolitan
territory” or attacks against our “islands in the Pacific”. Since there is currently no armed attack, and
since an attack on the Spratlys and the adjacent environs in the West Philippine Sea cannot
trigger the application of the MDT, the EDCA cannot possibly be based on the MDT. Neither can it
be anchored on the VFA because the presence of US troops pursuant to EDCA goes beyond
“visiting”. It is in fact an implementation of a US Defense policy to do away with fixed large-scale
bases.
28.This clear
presence of conflicting claims of legal rights susceptible of judicial
sufficiently established the need for
the court to exercise its power of adjudication.
The case is ripe for adjudication;
29.Furthermore, the controversy that compelled the Petitioners
to file the instant petition before the
Honorable Court is sufficiently ripe for adjudication.
30.In Lozano vs. Nograles, the Supreme Court
reiterated the principle of ripeness, to wit: “An aspect of the "case-or-controversy"
requirement is the requisite of "ripeness." In the United States,
courts are centrally concerned with
whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur
at all. Another approach is the evaluation of the t wofold aspect of ripeness:
first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by
withholding court consideration. In our jurisdiction, the issue of ripeness is generally treated in terms of
actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged
has had a direct adverse effect on the individual challenging it. An alternative road to review
similarly taken would be to determine whether an action has already been accomplished or performed by
a branch of government before the courts may step in.” (Emphasis supplied)
31.With the actual signing of the EDCA
by Defense Secretary Voltaire Gazmin and US Ambassador to Manila Philip Goldberg on 28 April 2014, the
case is now ripe for adjudication and the Court is called upon to exercise its power of judicial
review.
Petitioners have standing to file the instant Petition
32.The Supreme Court, in many cases, has
discussed this principle of locus standi. In Bayan Muna vs. Romulo , it explained that-
“Locus standi is "a right of
appearance in a court of justice on a given question." Specifically, it is
"a party’s personal and substantial
interest in a case where he has sustained or will sustain direct injury as a result" of the act being
challenged, and "calls for more than just a generalized
grievance."
33. Moreover, in
Southern Hemisphere Engagement Network vs. Anti-Terrorism Council, the
Court reiterated that “(l)ocus standi or
legal standing is a personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.”
34.In the instant
petition, Petitioners as citizens assert their fundamental rights guaranteed by
the Constitution and injured by the
enforcement of the EDCA, which injury may be redressed by the declaration of the EDCA as unconstitutional.
Thus, the Petitioners have the standing to file the instant petition.
As the Honorable
Court held in the landmark case of Roque v. House of Representatives,
“When suing as a citizen, the interest
of the petitioner assailing the constitutionality of a statute must be direct
and personal. He must be able to show, not only that the law or government act
is invalid, but also that he sustained
or is in imminent danger of sustaining some direct injury as a result of
its enforcement, and not merely that he
suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be subjected
to some burdens or penalties by reason of the statue or act complained of. In fine, when the
proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.” [emphasis supplied]
35. Furthermore, the Supreme Court has
held that concerned citizens can bring suits if the constitutional question they raise is
of 'transcendental importance’, which must be settled early.
36. Thus, in
Defensor-Santiago v. Comelec, this Honorable Court declared that "[a]
party's standing is a procedural
technicality which it may, in the exercise of its discretion, set aside in view
of the importance of the issues
raised.”
37. Moreover, it was
held in Kilosbayan vs. Guingona, and reiterated in Tatad v. Secretary,
that procedural technicalities may
be set aside by the Court in cases of transcendental importance in view of the importance of the issues
involved.
38.Thus, as the
issues raised by Petitioners in the instant case are of paramount public
interest, involving as it does, the
proper exercise of the executive power to enter into international agreements, it is humbly prayed that the
Honorable Court brush aside procedural barriers, if any, in taking cognizance of the issues now raised.
39.The Honorable
Supreme Court has repeatedly and consistently affirmed that the Court may
brush aside technicalities of procedure
where a rigid adherence to the rules would prejudice substantial justice, where the issues are of first
impression and entail interpretation of key provisions of the Constitution and law, or where the case
involves matters of transcendental importance, such as in cases involving the right to life.
As the
Honorable Court held in Solicitor General v. Metropolitan Manila Authority:
“Unquestionably, the Court has the power
to suspend procedural rules in the exercise of its inherent power, as expressly recognized in the
Constitution, to promulgate rules concerning 'pleading, practice and procedure in all courts. In proper
cases, procedural rules may be relaxed or suspended in the interest or suspended in the interest of
substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence
to such rules.”
40. As was held by the High Court in the
VFA cases , the Court, in the exercise of its sound discretion, may brush aside procedural barriers and take
cognizance of a case in view of the paramount
importance and the constitutional significance of the issues raised.
41.Thus, as the
issues raised by the Petitioners in the instant case are of paramount public
interest, involving as it does, the
exclusive power of the Senate to concur in treaty or international
agreement, and the extent of the power
of the executive branch to enter into international agreements, Petitioners humbly pray that the Honorable
Court brush aside procedural barriers, if any, in taking cognizance of the issues raised by this
Petition.SUBSTANTIVE ISSUES
I. THE PUBLIC RESPONDENT DEFENSE SECRETARY COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SIGNING THE ENHANCED
DEFENSE COOPERATION AGREEMENT (EDCA), PURPORTEDLY DESIGNED TO FURTHER THE
MUTUAL DEFENSE TREATY BETWEEN THE PHILIPPINES AND THE UNITED STATES, ON
THE GROUND THAT IT CANNOT FURTHER A TREATY THAT IS BOTH UNCONSTITUTIONAL AND
CONTRARY TO THE INTENTS AND PURPOSES OF THE UNITED NATIONS CHARTER, TO WHICH
BOTH COUNTRIES ARE PARTIES
---------------------------------------------
A. The MDT, a creature of a different era, has already been
superseded by the 1987 Constitution and its express renunciation of war as an
instrument of national policy.
42.The Mutual Defense Treaty, signed
between the Philippines and the United States in 1951, is said to be the anchor to the Enhanced Defense Cooperation
Agreement.
43.Stated in another
way, the provisions of the EDCA itself claim that it is no more than a
mere implementation of policies already
set forth in the MDT and later on, in the Visiting Forces Agreement (VFA).
44.However, the
constitutionality of the MDT, a document born in the Cold War-era, must now
be squarely attacked, simply because its
provisions directly contradict the peace-oriented 1987 Charter.
45.Under the 1987
Philippine Constitution:
“Section 2. The Philippines renounces war
as an instrument of national policy, adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations.” (Emphasis supplied)
46.In the first place, while the MDT
purports to abide by the UN Charter and its peaceful aims and purposes, the very language of the Treaty as
far as its invocation of collective self-defense in case of an armed attack, is couched in such general
terms that it undermines the very specific intents of the inherent right of self-defense expressed in
Art. 51 of the UN Charter.
47. This is seen in the expansiveness of
the coverage of the Treaty, which embraces practically the entirety of the Pacific ocean, as if it were
the reserve of only two countries – the United States of America and the Philippines, as can be seen
in Article III of the Treaty:
“The Parties, through their Foreign
Ministers or their deputies, will consult together from time to time regarding the implementation of this Treaty
and whenever in the opinion of either of them the territorial integrity, political independence
or security of either of the Parties is threatened by external armed attack in the Pacific.”[emphasis supplied]
48. Article III is the hermeneutical key
to the Treaty’s specifications of instances when an armed attack may trigger collective self-defense
between the United States of America and the Philippines, which include, but are not limited to the
following:
“For the purpose of Article IV, an armed
attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of
either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its
armed forces, public vessels or aircraft in the Pacific.”
49.The over-breadth in the coverage of
the Treaty thus opens the entire Pacific Ocean to an escalation of hostilities, as its language
allows for trans-boundary uses of force against what the two Parties may arbitrarily consider to be an
invasion of their respective territories in the Pacific region without a clear clarification of the metes
and bounds of such territories.
50.Such over-breadth
undermines the very international peace and security it purports to protect
and preserve.
51.Because the MDT
contravenes the constitutional policy against war, it must be struck down
for being unconstitutional.
B. The MDT also contradicts our obligations as a member of the United Nations,
under whose own Charter the use of force as a means to settle disputes between
and among states has been outlawed.
52.The use of force to settle dispute
among states is now prohibited in international law.
53.This prohibition
has the status of a jus cogens norm, and is expressed in Art. II (4) of
the UN Charter, which states thus:
“All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
54.This then imposes on the Philippines
an erga omnes omnium obligation – or an obligation under customary international law that attaches to
all members of the international community – to abide by the prohibition in question.
55.One of the generally accepted
principles of international law is pacta sunt servanda.
56.State parties must
comply with their treaty obligations in good faith. The Philippines has to
comply with its treaty obligations in
good faith, and at least take steps to fulfill these obligations.
57.Under the doctrine
of incorporation, the principle of pacta sunt servanda forms part of
municipal law.
58.Thus, in addition,
as a Charter member of the UN, the Philippines has an obligation to comply
with the provisions of the UN Charter
under the principle of pacta sunt servanda; that is, it is bound by an obligation erga omnes partes, one that attaches
to all members of the multi-lateral treaty, in relation to the same prohibition.
59.Thus, the international obligation of
the Philippines to comply with the prohibition on the use of force to settle disputes between and among
states is of dual character from the point of view of sources: as a jus cogens norm binding on all
states and as treaty obligation binding on all parties to the UN Charter.
60.Further, the same
obligation has also been constitutionalized in Philippine jurisdiction in
two ways: first, by express renunciation
of war as a national policy and by the jus cogens norm prohibiting the use of force to settle disputes between and
among states made part of Philippine municipal law through the Incorporation Clause of the 1987
Charter.
61.Philippine
obligations under the MDT cannot override its jus cogens obligations under the
UN Charter and under customary
international law.
62.As already stated
in the preceding section, the MDT violates the specific exclusionary intents
of Art. 51 of the UN Charter on when and
where the right to collective self-defense may be invoked.
63.Such a violation
is a breach of Philippine obligations to the peaceful settlement of
disputes between and among states as a
member of the United Nations.
C. Assuming arguendo that the MDT is constitutional, the EDCA cannot be
considered to be afurther implementation of policies previously agreed upon in
the MDT and the VFA.
64.First, the MDT cannot have an
application in the current case as it is only applicable for the purpose of resisting armed attack. As
provided in Article II of the MDT:
“ARTICLE II. In order more effectively
to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will
maintain and develop their individual and collective capacity to resist armed attack.”
65.Further, there are no provisions in
the MDT that authorize and provide for any subsequent agreement in furtherance of its purpose.
66.The VFA also
cannot have an application in EDCA since the VFA only covered the entry of American troops visitingthe Philippines for
the purpose of training exercises.
67. The VFA does not
cover any establishment of foreign military structures for the use of the
foreign troops, nor does it cover the
storage of foreign defense supplies and materiel.
68.Nothing in the MDT
or the VFA provides for (1) Construction of facilities and infrastructure upgrades; and (2) Storage and prepositioning
of defense and HADR equipment, supplies and
materiél. These policies are unique to the EDCA.
69.These two main
purposes of the EDCA therefore, cannot be said to be merely advancing the implementation of the MDT or the VFA.
70.The provision of
the Constitution is clear and unequivocal. Foreign military bases, troops,
or facilities are not allowed unless
there is a concurrence by the Senate.
71.The MDT’s express
purpose is to bind the parties to an obligation to defend each other
from enemy attacks. The VFA’s express
purpose is to allow joint exercises by the US and Philippine militaries.
72.The EDCA provides
as its purpose:
Article 1
3. The parties agree that the United States may undertake the following types
of activities in relation to its access and use of Agreed Locations: security
cooperation exercises; joint and combined training activities; humanitarian
assistance and disaster relief activities; and such other activities as may be
agreed upon by the Parties.
73.Nothing in either
the MDT or the EDCA allows the presence of troops or materials for the
purpose of humanitarian assistance and
disaster relief activities.
74.A comparative
table of the key features of the MDT, the VFA and the EDCA will show thus:
MDT VFA EDCA
Date entered into Signed - August 30, 1951 Signed – February
10, 1998Ratified - May 27, 1999 Signed - April 28, 2014Historical background
during period entered into Period of communist expansion in Asia in the period
following World War II and the Korean War Period of “access” as a new approach
in maintaining US presence in Southeast Asia. Instead of permanent bases the
approach seeks bilateral arrangements – like those with Singapore – for
training, exercises and interoperability to allow for uninterrupted forward
deployment in the region.
Period of heightened tensions in the West Philippine Sea.
Period of the US pivot to the Asia Pacific from previous
focus on Europe and the Middle East.
Signed on the day of the arrival of US President Barack
Obama for a State Visit.
Purpose of the agreement
Provides that the parties recognize that an armed attack in
the Pacific Area on either of the Parties would be dangerous to its own peace
and safety and declares that it would act to meet the common dangers in
accordance with its constitutional processes.
Provides a mechanism for regulating the circumstances and
conditions under which United States forces may visit the Philippines for
bilateral military exercises.
The VFA governs the entry and exit of U.S. personnel in the
country and establishes the manner of disposing of criminal cases against any
of its members, who commits an offense in the Philippines. The VFA also
establishes a procedure for resolving differences in that may arise between the
two sides with regard to the provisions of the agreement.
Provides cooperation by way of (1) Construction of
facilities and infrastructure upgrades; and (2) Storage and prepositioning of
defense and HADR equipment, supplies and material.
75.It is important to note that the VFA primer
provided by the DFA states:
“Neither does the Philippine Government
intend to allow any United States military facilities or any other foreign military facilities to be
established in the country again. There is just no compelling political or defense consideration for such a
course of action.
The VFA pertains to
the treatment of United States troops temporarily visiting the Philippines
to conduct bilateral exercises with the
Philippines These visits will be temporary and, as stated above, will not constitute a permanent stationing of
United States troops on Philippine soil.
Furthermore, the VFA does not involve access arrangements
for United States armed forces or the
pre-positioning in the country of U.S. armaments and war materials. The
agreement is about personnel and not
equipment or supplies. Any effort by the United States to assist the
Philippines on military equipment and
supplies will be governed by the 1947 Military Assistance Agreement and
the 1953 Mutual Defense Assistance
Agreement. Any other envisaged arrangements not falling under t hese two
agreements will require fresh agreements, which the Philippines has no
intention of concluding in the immediate
future.”
76.Hence, there is no doubt that the EDCA expands the coverage of both
the MDT and the VFA , specifically in the establishment of facilities in “Agreed
Locations”, and storage and prepositioning of defense and HADR supplies,
equipment and materiel.
77.Moreover, the MDT has been superseded by the 1987
Constitution.
78.The MDT was entered into by the US and the Philippines in
1951. As such, whatever requirements that the 1987 Constitution provides for in
relation to entry into treaties cannot be dismissed by simply arguing that a
new treaty is just an extension of the old one.
79.Further, the actions of the government in relation to the
Visiting Forces Agreement should be a guide to how the EDCA should be treated.
80.The VFA also provided that it is aligned with the
obligations already established under the MDT. Still, the government still saw
fit to enter into the VFA through a treaty concurred with by the Senate, and
not just through an executive agreement.
81.If the VFA was also a furtherance of the MDT, why then
was it in a form of a treaty? Why did the government not use the same reasoning
to enter into an agreement without the need of Senate concurrence?
82.Is it for mere expediency? To provide a “welcoming gift”
for a visiting President? Shall we bargain, or worse, give away for free our
sovereignty and the Philippine Constitution for such reasons?
83.Furthermore, the government’s own actions in relation to
the VFA estops them now from claiming that the EDCA does not need Senate
concurrence.
84.The EDCA actually implements a new US defense policy in
line with their “pivot” to Asia.
85.Whereas the focus of US foreign policy was concentrated
before on the Middle East, the focus has now turned to Asia, especially in
light of the emerging superpower, China.
86.In light of this, US foreign policy has shifted into
stationing US military troops “temporarily” in foreign bases, while keeping a
constant military presence in Asia.
87.This means that EDCA will involve stationing of troops in
the Philippines in a manner, which was not provided for either in the MDT or
the VFA.
88.Hence, EDCA requires Senate concurrence as required by
Section 25, Article XVIII of the 1987 Constitution.
89.Therefore, in any case, the Executive Department, through
the Public Respondents, has the ministerial duty to formally transmit the EDCA
to the Philippine Senate for its concurrence, in accordance with Section 25,
Article XVIII of the 1987 Constitution.
90.Consequently, the Executive Department, through the
Public Respondents, unlawfully neglected the performance of an act which the
Constitution specifically enjoins as a duty resulting from the office--- by
failing to transmit the EDCA to the Philippine Senate for its concurrence in
accordance with Section 25, Article XVIII of the Constitution.
II. THE PUBLIC RESPONDENT DEFENSE SECRETARY COMMITTED GRAVE ABUSE OF DISCRETION
WHEN HE SIGNED THE EDCA BECAUSE THE EDCA VIOLATES THE CONSTITUTIONAL
PROHIBITION ON NUCLEAR WEAPONS IN THE COUNTRY AND DEPRIVES THE SUPREME COURT OF
ITS CONSTITUTIONAL
PREROGATIVES.--------------------------------------------------
A. The EDCA violates Article II, Section 8 of the 1987
Constitution, which prohibits nuclear weapons in the country.
91.The Philippine Constitution expressly provides in Article II, Section 8:
"The Philippines, consistent with the national interest, adopts and
pursues a policy of freedom from nuclear weapons in its territory."
92.The Philippine primer released by the government on the
EDCA states that among the main features of the EDCA is a “Prohibition of entry
to the Philippines of nuclear weapons, and reference to respective obligations
of both Parties under the Chemical Weapons Convention and the Biological
Weapons Convention”.
93.The Preamble of the EDCA provides:
“Recalling the Parties’ respective international
obligations, including those provided under the Convention on the Prohibition
of the Development, Production, Stockpiling and Use of Chemical Weapons and on
their Destruction and the Convention on the Prohibition of the Development,
Production and Stockpiling of the Bacteriological (Biological) and Toxin
Weapons and on their Destruction;”
94.The much bandied about provision that purportedly prevents the entry of
nuclear weapons in the Philippines actually states:
Article IV
6. The prepositioned materiel shall not include nuclear
weapons.
95.In fact, the Executive has, intentionally or not, misled
the public.
96.There is in fact no absolute statement in the EDCA that
prohibits the entry into the Philippines of nuclear weapons. The EDCA only
disallows the prepositioning of nuclear weapons.
97.There is no express prohibition for the entry of nuclear
weapons through the other activities allowed by the EDCA namely: transit;
refueling of aircraft; bunkering of vessels; and temporary maintenance of
vehicles, vessels and aircraft among others.
98.It is the height of naiveté to believe that US planes or
vessels, which may be stationed in the Philippines in connection with the EDCA,
or to carry out refueling, or in transit, will not carry nuclear weapons.
99.The Constitutional prohibition is absolute in its
prohibition against nuclear weapons in its territory. As such, no vessel or
aircraft of the US, which enters Philippine territory, should be allowed to
carry nuclear weapons. Yet, the language of EDCA only prohibits nuclear weapons
if they are prepositioned. There is no prohibition present in all the other
activities that EDCA allows where US troops, supplies and materiel enter
Philippine territory.
100.Further, while the government argues that they are able
to check all the facilities of the US under EDCA as the “Designated Authority”
is allowed access to all “Agreed Locations” to ensure that nuclear weapons are
not brought into the country, there is no way that such a provision will be
enforceable by the Philippine government.
101.It is clear, upon a closer examination of the EDCA, that
access to the Agreed Locations by Designated Authority is contingent on
“operational safety and security requirements”.
102.It is clear from the EDCA that it is the United States
that has operational control of Agreed Locations:
Article III
4. The Philippines hereby grants to the United States,
through bilateral security mechanisms, such as the MDB and SEB, operational
control of Agreed Locations for construction activities and authority to
undertake such activities on, and make alterations and improvements to, Agreed
Locations. xxx
5. The Philippine Designated Authority and its authorized
representative shall have access to the entire area of the Agreed Locations.
Such access shall be provided promptly consistent with operational safety and
security requirements in accordance with agreed procedures developed by the
Parties.
Article VI
6. United States forces are authorized to exercise all
rights and authorities within Agreed Locations that are necessary for their
operational control or defense…”
103. Locations may not be accessed by Designated Authority based on
“operational safety”. As such, they are free to bring any supplies or materiel
without limitation.
B. The EDCA deprives the Supreme Court of its exercise of its Constitutional
Powers provided for under Article VIII, Section 1 of the Constitution.
104. The EDCA provides in Article XI, the procedure for resolution of disputes.
It states,
“The parties agree to resolve any dispute arising under this Agreement
exclusively through consultation between the Parties. Disputes and other
matters subject to consultation under this Agreement shall not be referred to
any national or international court, tribunal, or other similar body, or to any
third party for settlement, unless otherwise agreed by the Parties.”(emphasis
supplied)
105. This is in direct contravention of the constitutional
powers granted exclusively to the Judiciary under Article VIII, Section 1 of
the Constitution which states,
“Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.”
106. This exclusive jurisdiction given to the Supreme Court
cannot be derogated by a mere Executive Agreement.
107. This provision of the EDCA also gives rise to questions
as to how US troops, personnel and contractors will be treated under possible
criminal prosecutions.
108. It cannot be denied that the Subic Rape Case tackled by
the Court in Sombilon v. Executive Secretary raised issues as to the ability of
the Philippine government to properly prosecute and punish those who may be
guilty of crimes committed in the Philippines by visiting foreign forces.
109. Moreover, the recent grounding of a US minesweeper at
the Tubbattaha Reef, which caused unimaginable damage to the natural
habitatthere, also underscored the inability of the Philippine government to
hold the US liable for damage to the environment that may be caused by their
presence.
110. It is a reiteration of the same colossal problems posed
arising from toxic contamination of base environs caused by untreated
waste materiel left by the US armed forces when they pulled out of the
Clark and Subic bases.
111. All these issues are sure to arise under the EDCA. There is however,
little that is actually known with how these shall be treated, except for this
provision which provides even less clarity than an analogous provision found in
the VFA.
112. The even more vague provision regarding dispute
resolutions under the EDCA gives rise to the real threat that the Judiciary
will be deprived of its Constitutional powers if the US invokes the provision.
III. THE PUBLIC RESPONDENT DEFENSE SECRETARY COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY SIGNED THE
EDCA SINCE THE EDCA IS CONTRARY TO NATIONAL INTEREST AND IS IN FACT, HIGHLY
DISADVANTAGEOUS TO IT.
-------------------------------------------------
A. Although it was signed in the context of heightened tension with China and
dangled as proof of America’s “ironclad” commitment to defend the
Philippines against Chinese expansionism, there is no assurance that the United
States will actually come to the aid of the Philippines in case of an invasion
by China.
113. The Section 7 of Article II of the Constitution provides,
“Section 7. The State shall pursue an independent foreign policy. In its
relations with other states, the paramount consideration shall be national
sovereignty, territorial integrity, national interest, and the right to
self-determination.”
114. In all its international dealings, the State is
required to first consider if its position is in line with the Philippines’
national interest.
115. The Executive has failed in this regard since the EDCA is patently
contrary to Philippine national interest.
116. Many pronouncements have been made by government officials trumpeting the
fact that EDCA will aid us with our current dispute with China over the West
Philippine Sea.
117. Initially after his arrival to the Philippines however,
US President Barack Obama would not expressly state that the US would come to
the aid of the Philippines in case of an armed attack by China.
118. This is in stark contrast to his clear and unequivocal
statement during his visit to Japan where he expressly stated the US
Commitment. He stated this in the Joint Press Conference with Prime Minister
Shinzo Abe during his visit to Tokyo.
119. He stated, “Let me reiterate that our treaty commitment
to Japan’s security is absolute. And Article 5 (of the treaty) covers all
territories under Japan’s administration, including the Senkaku Islands.”
120. Further, it is not the EDCA which will or should compel
the US government to come to the aid of the Philippines in the event of an
armed attack. This obligation is already on the part of the US based on
the MDT, which provides,
“ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either
of the Parties would be dangerous to its own peace and safety and declares that
it would act to meet the common dangers in accordance with its constitutional
processes.”
121. Even then however, this aid will not be automatic or
immediate as the MDT provides that constitutional processes must first be
complied with.
122. In the case of the US, this may require their Congress
to first approve of military action. As such, there is no such new advantage to
the Philippines as a result of the EDCA as claimed.
123. On the other hand, it will only likely increase the ire
of China as seen in Chinese media where the Chinese news agency, Xinhua has
published the following editorial:
“By striking the defense deal with the United States at this moment despite domestic
opposition, the Aquino administration has made its intention clear: to confront
China with U.S. backing.
Such an aggressive posture could easily lead to further provocation. An
emboldened Aquino would make an amicable solution to the territorial disputes
more difficult, if not impossible, and intensify regional tensions.”
B. The MDT is inapplicable in the circumstance as the West Philippine Sea is
neither a metropolitan territory nor islands in the Pacific as provided in the
MDT.
124.In any case, the MDT is potentially inapplicable in the current
circumstances surrounding the tension between the Philippines and China as the
West Philippine Sea is neither a metropolitan territory, nor islands in the
Pacific.
125. The MDT specifically provides what an “armed attack”
is,
ARTICLE V. For purposes of ARTICLE IV, an armed attack on either of the Parties
is deemed to include an armed attack on the metropolitan territory of either of
the Parties, or on the island territories under its jurisdiction in the Pacific
Ocean, its armed forces, public vessels or aircraft in the Pacific.
126. First, the MDT does not even define what metropolitan
territories are. Hence, there can be a denial of aid by the US in relation to
the dispute that is currently in place.
127. The US government can also claim that the Scarborough
and Ayungin Shoals are not islands in the Pacific.
128. All these considerations in place allow the US
government to escape its treaty obligations to the Philippines by stating that
the MDT does not apply to the ongoing dispute with China.
C. The terms and provisions of the EDCA are an affront to
the national interest as they are evidently lopsided in favor of the United
States of America, when viewed from similar or analogous agreements entered
into by the latter with some of its other allies
129.The EDCA provides,
Article III
3. Given the mutuality of benefits, the parties agree that
the Philippines shall make Agreed Locations available to the United States
forces without rental or similar costs. United States forces shall cover
their necessary operational expenses with respect to their activities at the
Agreed Locations.
130. Proponents of the EDCA say that the Philippines stands
to benefit form the EDCA. The primer released by the Philippine government
outlines the following as among the benefits of EDCA for the Philippines:
• Philippine ownership of buildings and infrastructure once
constructed by US military;
• Sharing and joint use of facilities in the Agreed
Locations, including those built by the US military;
131.However, these benefits, whether or not intentionally,
are quite misleading.
132.Insofar as ownership of buildings and infrastructure are
concerned, while the EDCA does state that they these shall be owned by the
Philippines once constructed, the EDCA also states:
“Article V
4. xxx Permanent buildings constructed by United States forces become property
of the Philippines, once constructed, but shall be used by United States forces
until no longer required by United States forces.”
133. At the very minimum, based on the initial time line of
the EDCA, the Philippines cannot use the buildings and facilities built by the
United States until after at least ten years. And since the EDCA continues in
force automatically, this benefit may not come into force until well after
that.
134. Insofar as sharing and joint use of facilities in
Agreed Locations, there is nothing contained in Article III that states that
the Philippine forces are able to share in the facilities built by the US in
the Agreed Locations. In fact, the entire Article only covers what the
Philippines shall provide for the US forces, including the fact that no rental
or similar costs will be paid by US forces. However, there is nothing in
the Article that stands to benefit the Philippines in a way that the primer
released by the government states.
135. At the time of the negotiations for the treaty for the
US Bases in 1991, the US Government offered to pay US$203 million for its
continued lease of the Subic Naval base .
136. With the EDCA, not only is the Philippines not
receiving any remuneration for allowing US presence in the country, it has
committed to making all the effort to facilitate US presence in the country,
including providing security for the facilities, equipment, supplies and
materiel to be stored. All these for the measly return of by then, old
building, facilities and infrastructure and the possible sale or transfer of
equipment determined to be excess.
137. Even the access provisions show a clear disdain for
Philippines and a marked advantage for the US:
“Article III
5. The Philippine Designated Authority and its authorized representative shall
have access to the entire area of the Agreed Locations. Such access shall be
provided promptly consistent with operational safety and security requirements
in accordance with agreed procedures developed by the Parties.
Article IV
4. United States forces and United States contractors shall
have unimpeded access to Agreed Locations for all matters relating to the
prepositioning and storage of defense equipment, supplies, and materiel,
including delivery, management, inspection, use, maintenance, and removal of
such equipment, supplies and materiel.”
138. The Philippine government also trumpets the advantages
of US presence brings in disaster relief. However, the US is expected to assist
in disaster relief efforts anyway, with our without EDCA.
139. Further, the HADR equipment only forms a small part of
what the EDCA will allow the US forces to store in the Philippines. Therefore,
the advantage to having HADR equipment nearby may very minimal.
140.Yet, what exactly do we get in return? We actually get a
pittance. We are dubbed, since the Bush years, as a major non-NATO ally and
more recently, in the words of President Obama, as the “coordinator” for
the US in the ASEAN region.
141. For all that the Philippines is supposedly now the
largest benefactor of the Pentagon's Foreign Military Financing budget,
receiving $11 million in 2005, $12 million in 2006 and $13 million in 2007
but compared to what Pakistan is getting from the US, our share of
foreign military financing is peanuts.
142. Over the last few years, the US has given more than $ 7
billion to Pakistan in direct assistance –that is, in funds to purchase
weapons, supplies and equipment, purportedly to help it fight the Taliban.
143. In fact, it has become yet another sore point for US
planners, who lament that the funds supposedly intended to develop Pakistan’s
counter-terrorism capabilities, were all funnelled to purchases by the
Pakistani armed forces of “heavy arms, aircraft and equipment that U.S.
officials say are far more suited for conventional warfare with India, its
regional rival.”
144. Compare that to American military aid to the
Philippines, which comes in the form of financing; that is, no money actually
reaches Philippine coffers. Funds are directly funnelled to American firms
contracted by the US government to supply mostly refurbished equipment to the
Philippine military, like Vietnam-war era helicopters, trucks and patrol boats.
145. The Center for Public Integrity places Pakistan on the third spot in its
list of top 10 recipients of US military aid three years after 9/11. The
Philippines is not on that list:
Top 10 U.S. Military Aid Recipients Three Years After 9/11
Israel - $9,094,874,000
Egypt - $6,025,456,540
Pakistan - $4,682,808,397
Jordan - $2,670,414,688
Afghanistan - $2,663,783,836
Colombia - $2,048,565,665
Turkey - *$1,324,923,070
Peru - $445,825,971
Bolivia - $320,682,000
Poland- $313,136,119*
*The $1 billion grant made to Turkey through the Economic
Support Fund for fiscal year 2003 was rescinded in 2005.
146. It is no wonder that despite years of American military
aid to the Philippines, our armed forces remains the most poorly-equipped in
the Asian region. Barya-barya lang at mga pinaglumaan na ang bigay nila sa
atin.
147. For example, the most recent acquisitions of the AFP
from the US in the wake of heightened tensions at the West Philippine Sea are
two decommissioned cutters from the US Coastguard whose relatively advanced
armaments had been stripped off the two vessels by American authorities before
these were turned over to the Philippines.
148. And this is not to mention the concerns raised by
critics that while US military aid has boosted counter-insurgency capabilities
of the Philippine military “it has come at the price of a U.S. blind eye to
[human rights abuses in the Philippines].”
149.Any talk of American assistance to the Philippines to
develop a “minimum credible defense capability” rings hollow in the face of
these facts.
150. And the little cash that the Americans allow the
Philippine military to have – as in the case of financial support for the
annual Balikatan exercises –unfortunately end up in the pockets of some corrupt
Filipino generals, if the revelations of Navy Lt. Senior Grade Mary Nancy
Gadian are to be believed.
151. A comparative table of analogous or similar Status of
Forces Agreements (SOFAs) the US has entered into with some of its other allies
- Iraq, Japan and South Korea – will show in great detail how our own
negotiators for the EDCA have placed national interest at such a great
disadvantage:
US-Iraq US-Japan US-South KoreaPresence of Similar “Agreed Locations” Yes ïƒ ”Agreed facilities and areas” Yes ïƒ "Facilities and areas" Yes ïƒ “Facilities and
Areas”Definition/Determination of Similar “Agreed Locations” Article 2:
Definition of Terms1. “Agreed facilities and areas" are those Iraqi
facilities and areas owned by the Government of Iraq that are in use by the
United States Forces during the period in which this Agreement is in force.
Article II:1. (a) The United States is granted, under Article VI of the Treaty
of Mutual Cooperation and Security, the use of facilities and areas in Japan.
Agreements as to specific facilities and areas shall be concluded by the two
Governments through the Joint Committee provided for in Article XXV of this
Agreement. "Facilities and areas" include existing furnishings,
equipment and fixtures necessary to the operation of such facilities and
areas.1. (b) The facilities and areas of which the United States has the use at
the time of expiration of the Administrative Agreement under Article III of the
Security Treaty between Japan and the United States of America,shall be
considered as facilities and areas agreed upon between the twoGovernments in
accordance with sub-paragraph a above. Article II: Facilities and Areas - Grant
and Return 1. (a) The United States is granted, under Article IV of the
Mutual Defense Treaty, the use of facilities and areas in the Republic of
Korea. Agreements as to specific facilities and areas shall be concluded
by the two Governments through the Joint Committee provided for in Article
XXVIII of this Agreement. "Facilities and areas" include existing
furnishings, equipment, and fixtures, wherever located, used in the operation
of such facilities and areas.
Use of “Agreed Locations”
Some may be exclusively used by the United States and some may be shared
between Iraq and the United States.
Article 6: Use of Agreed Facilities and Areas 2. In
accordance with this Agreement, Iraq authorizes the United StatesForces to
exercise within the agreed facilities and areas all rights and powersthat may
be necessary to establish, use, maintain, and secure such agreed facilities and
areas. The Parties shall coordinate and cooperate regarding exercising these
rights and powers in the agreed facilities and areas of joint use. Article
II:l. (a) The United States is granted, under Article VI of the Treaty ofMutual
Cooperation and Security, the use of facilities and areas in Japan.4. (a) When
facilities and areas are temporarily not being used by the United States armed
forces, the Government of Japan may make, or permit Japanese nationals to make,
interim use of such facilities and areas provided that it is agreed between the
two Governments through the Joint Committee that such use would not be harmful
to the purposesfor which the facilities and areas are normally used by the
United States armed forces.(b) With respect to facilities and areas which are
to be used by United States armed forces for limited periods of time, the Joint
Committee shall specify in the agreements covering such facilities and areas
the extent to which the provisions of this Agreement shall apply.
Article II: Facilities and Areas - Grant and Return4. (a) When facilities and
areas are temporarily not being used and the Government of the Republic of
Korea is so advised, the Government of the Republic of Korea may make, or
permit nationals of the Republic of Korea to make, interim use of such
facilities and areas provided that it is agreed between the two Governments
through the Joint Committee that such use would not be harmful to the purposes
for which the facilities and areas are normally used by the United States armed
forces.
Return of “Agreed Locations” to Host Country
Article 5: Property Ownership6. The United States shall return agreed
facilities and areas and any nonrelocatable structures and assemblies on them
that it had built, installed, or established during the term of this Agreement,
according to mechanisms and priorities set forth by the Joint Committee. Such
facilities and areas shall be handed over to the Government of Iraq free of any
debts and financial burdens.7. The United States Forces shall return to the
Government of Iraq theagreed facilities and areas that have heritage, moral,
and politicalsignificance and any non-relocatable structures and assemblies on
them that it had built, installed, or established, according to mechanisms,
priorities, and a time period as mutually agreed by the Joint Committee, free
of any debts or financial burdens.8. The United States Forces shall return the
agreed facilities and areas to the Government of Iraq upon the expiration or
termination of this Agreement, or earlier as mutually agreed by the Parties, or
when such facilities are no longer required as determined by the JMOCC, free of
any debts or financial burdens.
Article II:2. At the request of either Government, the
Governments of Japan and the United States shall review such arrangements and
may agree that such facilities and areas shall be returned to Japan or that
additional facilities and areas may be provided.3. The facilities and areas
used by the United States armed forces shall be returned to Japan whenever they
are no longer needed for purposes of this Agreement, and the United States
agrees to keep the needs for facilities and areas under continual observation
with a view toward suchReturn.
Article IV:1. The United States is not obliged, when it
returns facilities and areas to Japan on the expiration of this Agreement or at
an earlier date, to restore the facilities and areas to the condition in which
they were at the time they became available to the United States armed forces,
or to compensate Japan in lieu of such restoration.2. Japan is not obliged to
make any compensation to the United States for any improvements made in the
facilities and areas or for the buildings or structures left thereon on the
expiration of this Agreement or the earlier return of the facilities and areas.
Article II: Facilities and Areas - Grant and Return2. At the request of either
Government, the Governments of the United States and the Republic of Korea
shall review such agreements and may agree that such facilities and areas or
portions thereof shall be returned to the Republic of Korea or that additional
facilities and areas may be provided. 3. The facilities and areas used by
the United States shall be returned to the Republic of Korea under such
conditions as may be agreed through the Joint Committee whenever they are
no longer needed for the purposes of this Agreement and the United States
agrees to keep the needs for facilities and areas under continual observation
with a view toward such return.
Article IV: Facilities and Areas - Return of Facilities
1. The Government of the United States is not obliged, when it
returns facilities and areas to the Government of the Republic of Korea on
the expiration of this Agreement or at an earlier date, to restore the
facilities and areas to the condition in which they were at the time they
became available to the United States armed forces, or to compensate
'the Government of the Republic of Korea in lieu of such
restoration. 2. The Government of the Republic, of Korea is not obliged to
make any compensation to the Government of the United States for any improvements
made in facilities and areas or for the buildings and structures left thereon
on the expiration of this Agreement or the earlier return of the facilities and
areas.
Storage of Military/Defense Equipment Allowed Allowed AllowedPublic Utilities
Not explicitly stated
Article VII:The United States armed forces shall have the
use of all public utilitiesand services belonging to, or controlled or
regulated by the Governmentof Japan, and shall enjoy priorities in such use,
under conditions no less favorable than those that may be applicable from time
to time to the ministries and agencies of the Government of Japan. Article VI:
Utilities and Services1. The United States armed forces shall have the use of
all utilities and services which are owned, controlled or regulated by the
Government of the Republic of Korea or local administrative subdivisions
thereof.
The term "utilities and services" shall
include, but not be limited to, transportation and communications
facilities and systems, electricity, -gas, water, steam, heat, light,
power, and sewage disposal. The use of utilities and services as provided
herein shall not prejudice the right of the United States to
operate military transportation, communication power and such other
utilities and services deemed necessary for the operations of the United
States armed forces. This right shall not be exercised in a manner
inconsistent with the operation by the Government of the Republic of Korea
of its utilities and services. 2. The use of such utilities and
services by the United States shall be in accordance with priorities,
conditions, and rates or tariffs no less favorable than those accorded any
other user.
152. There are glaring differences in these Status of Forces Agreements
with Japan, South Korea and Iraq. These serve to highlight the clear
disadvantage that the Philippines has with regard to the EDCA.
153. In the matrix, it can be seen that these Status of
Forces Agreements deal with Agreed Locations, which is the main focus of the
EDCA. Here, we see some fundamental differences:
154.In the Iraq, Japan and South Korea SOFAs, there is a
possibility of interim use of the host countries of the facilities constructed
by the US in the Agreed Locations. No such provision is present in the EDCA,
where facilities are for the use of the United States until they are no longer
needed.
155.Upon the return of the Agreed Locations, the Iraq, Japan
and South Korea SOFAs explicitly state that absolutely no compensation shall be
made on any construction or improvements made by the US in the Agreed Locations.
156. In the EDCA, no such provision is present.
Instead, Parties or Designated Authorities shall consult regarding the
terms of return of any Agreed Locations, including possible compensation for
improvements or construction .
157. While the United States shall bear the cost of
utilities in terms no less favorable than those enjoyed by government, similar
to the Japan SOFA, the cost of taxes and similar fees on these utilities shall
be on account of the Philippines , which is not present in the Japan and South
Korean SOFAs.
158. In effect, the Philippine government shall bear the
cost of the taxes on the utilities of the US, which is not present in the other
agreements.
IV. IN SIGNING THE EDCA ON BEHALF OF THE PHILIPPINE GOVERNMENT, PUBLIC RESPONDENT
DEFENSE SECRETARY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION BECAUSE IN DOING SO, HE MADE THE PHILIPPINES A
TARGET OF US ENEMIES PURSUANT TO THE INTERNATIONAL HUMANITARIAN LAW PROVISION
ON ITS GEOGRAPHIC APPLICATION.
--------------------------------------------------
159. Article 52 (2) of Additional Protocol I to the Geneva
Conventions state Additional Protocol provides,
Attacks shall be limited strictly to military objectives. In
so far as objects are concerned, military objectives are limited to those
objects which by their nature, location, purpose or use make an effective
contribution to military action and whose total or partial destruction, capture
or neutralization, in the circumstances ruling at the time, offers a definite
military advantage.
160. Under this definition of military objectives, two
criteria must be fulfilled. First, that the object has to contribute
effectively to the military action of the enemy. Second, its destruction,
capture or neutralization has to offer a definite military advantage for the
other side.
161. Legitimate military targets include: armed forces and
persons who take part in the fighting; positions or installations occupied by
armed forces as well as objectives that are directly contested in battle;
military installations such as barracks, war ministries, munitions or fuel
dumps, storage yards for vehicles, airfields, rocket launch ramps, and naval
bases.
162. The “basing” of US troops, facilities and equipment in
Philippine territory makes the Philippines a legitimate target for enemies of
the US as provided for by the laws on International Humanitarian Law even if
the potential US conflict does not geographically include the Philippines.
163. This is because US military facilities located in the
Philippines can be considered to effectively contribute to US military
action.
164. This is confirmed by the EDCA itself as the
agreement includes among others,
“Article III
1. With consideration of the views of the Parties, the Philippines
hereby authorizes and agrees that United States forces, United States
contractors, and vehicles, vessels and aircraft operated by or for the United
States forces may conduct the following activities with respect to Agreed
Locations: training; transit; support and related activities; 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 agree.
2. The Philippines hereby grants to the United States,
through bilateral security mechanisms, such as the MDB and SEB, operational
control of Agreed Locations for construction activities and authority to
undertake such activities on, and make alterations and improvements to, Agreed
Locations.
Article IV
1. The Philippines hereby authorizes United States forces, through bilateral
security mechanisms, such as the MDB and SEB, to preposition and store defense
equipment, supplies and materiel (“prepositioned materiel”), including, but not
limited to, humanitarian assistance and disaster relief equipment, supplies and
materiel, at Agreed Locations.”
165. These may be considered as legitimate targets of US enemies. Therefore, it
puts Philippine territories, particularly, the “Agreed Locations” in harm’s way
if the US enters into an international armed conflict even if the potential US
conflict is not geographically in the Philippines.
166. This is also one important reason why the EDCA should
be made subject to Senate concurrence: pursuant to its constitutional duty, the
Upper House should be allowed to seriously weigh the implications of making the
country a potential target of attack by the enemies of the US by allowing the
latter to preposition equipment and weaponry in Philippine territory through
the EDCA.
V. THE PUBLIC RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION IN SIGNING THE EDCA AND/OR IN
SUBSEQUENTLY FAILING TO FORMALLY TRANSMIT THE EDCA TO THE PHILIPPINE
SENATE FOR ITS CONCURRENCE, SINCE THE EDCA IS A TREATY – AND NOT MERELY AN
EXECUTIVE AGREEMENT – AND MUST THEREFORE COMPLY WITH THE CONSTITUTIONAL
REQUIREMENTS FOR THE VALIDITY OF A TREATY.
--------------------------------------------------
A. Section 25, Article XVIII of The 1987 Constitution requires that any
foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate.
167. In the first place, the EDCA is a treaty and not merely an executive
agreement. Therefore, it must have the concurrence of the Senate of the
Philippines before it can be operable.
168. The Vienna Convention on the Law of Treaties provides
in Article 2(1)(a) that:
“treaty” means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation.
169. The 1987 Philippine Constitution makes a distinction
between a Treaty and an Executive Agreement. However, its effects in creating
obligations on the part of the Philippines under international law are the
same. Hence, the Philippines is bound by its obligations in good faith whether
or not the agreement is domestically defined to be a treaty or an executive
agreement.
170. Under the Vienna Convention, a Treaty and Memorandum of
Agreement creates legally binding obligations between the parties as opposed to
a Memorandum of Understanding, which is non-legally binding.
171. Nevertheless, it this distinction is made insignificant
due to one of the generally accepted principles of international law, that is
pacta sunt servanda.
172. This principle provides that state parties must comply
with their treaty obligations in good faith. Whether the instrument entered
into by the Philippines is a Treaty or Executive Agreement, the Philippines has
to comply with its obligations in good faith, and at least take steps to
fulfill these obligations. Under the doctrine of incorporation, the principle
of pacta sunt servanda also forms part of municipal law.
173. That the Philippines will be bound by such agreements,
whether they are considered treaties or executive agreements, highlights the
importance of the requirement of Senate concurrence.
174. Considering this, we see the wisdom of the framers of
the Constitution when they included in the 1987 Philippine Constitution
requirements for certain agreements to be in the form of treaties. This
is so that these agreements will not only be considered by the Executive
department, but the Legislative as well.
175. In the case of the Philippine Constitution, the Senate
is charged with examining such agreements and see if they conform to our
national interest and policy.
176. Thus, it is of prime import that when entering into
such treaties and agreements, the Philippine government ensures that it
identifies which kind of agreement it is entering into so that proper
procedures may be followed.
177.One such instance where express concurrence of the
Senate is especially required is found in the 1987 Philippine Constitution’s
transitory provisions in Art. XVIII, Sec. 25:
“Section 25. 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.” (emphasis supplied)
178. And the Honorable Court in Bayan v. Executive Secretary
held that this provision “…specifically deals with treaties involving
foreign military bases, troops, or facilities,…”
179. Further, Article XVIII, Section 25 is complemented by
Article VII, Section 21 of the Constitution, which states:
Section 21. No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all Members of the Senate.
180.Clearly, the Philippine Senate must concur with the EDCA as it
clearly deals with the entry of United States military bases,
troops, or facilities in the Philippines.
181.Examining the EDCA, we find that it allows the presence
of United States military bases, troops, or facilities in the Philippine,
as clearly stated in its Article III: :
“Article III
1. With consideration of the views of the Parties, the
Philippines hereby authorizes and agrees that the United States forces, United
States contractors, and vehicles, vessels, and aircraft operated by or for
United States forces may conduct the following activities with respect to
Agreed Locations: training; transit; support and related activities; 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 agree.” (emphasis and underscoring
supplied)
182. It is clear that the EDCA provides for the entry of and establishment of
foreign military facilities as well as storage and prepositioning of foreign
equipment, supplies and materiel, not to mention US military forces, personnel
and contractors.
183. By claiming that the EDCA is a mere executive
agreement, the Executive has bypassed the exclusive power given by the
Constitution to the Philippine Senate under Article XVIII, Sec. 25, as stated
above, and Article VII, Sec. 21 of the Constitution.
184. Therefore, it is clear that the Public Respondents have
committed grave abuse of discretion by entering into the EDCA, as well as in
subsequently failing to formally transmit the EDCA to the Philippine Senate for
its concurrence, in accordance with Section 25, Article XVIII of the
Constitution.
B. Section 25, Article XVIII of the 1987 Constitution applies to the EDCA since
this constitutional provision makes no distinction whether the foreign military
bases, troops, or facilities are temporary, transient, or permanent in nature.
185. Section 25, Article XVIII of the 1987 Constitution provision makes no
distinction whether the foreign military bases, troops, or facilities are
temporary, transient, or permanent in nature. As held by the Honorable Court in
Bayan v. Executive Secretary, to wit:
Moreover, it is specious to argue that Section 25, Article
XVIII is inapplicable to mere transient agreements for the reason that there is
no permanent placing of structure for the establishment of a military base. On
this score, the Constitution makes no distinction between "transient’ and
"permanent". Certainly, we find nothing in Section 25, Article XVIII
that requires foreign troops or facilities to be stationed or placed
permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law,
the Court should not distinguish-Ubi lex non distinguit nec nos distinguire
debemos. (emphasis in the original)
186. As the EDCA clearly provides for the entry of and
establishment of foreign military facilities as well as storage and
prepositioning of foreign equipment, supplies and materiel, not to mention US
military forces, personnel and contractors, the constitutional requisites of
Section 25, Article XVIII of the 1987 Constitution applies to EDCA. And it is
legally inconsequential whether or not the presence of foreing military bases,
troops, or facilities under the EDCA is temporary, transient, or permanent.
C. There is greater reason to consider EDCA a treaty as it is
of a permanent nature, and not merely temporary.
187. The Executive previously considered the VFA as a treaty
and transmitted it to the Senate for its concurrence, though the VFA’s effects
can be said to be merely temporary. There is greater reason to consider
the EDCA a treaty since its effects are permanent.
188. The Supreme Court has made a clear distinction between
a treaty and an executive agreement. In the Commissioner of Customs vs. Eastern
Sea Trading , the Supreme Court held:
International agreements involving political issues or changes of national
policy and those involving international arrangements of a permanent character
usually take the form of treaties. But international agreements embodying
adjustments of detail carrying out well-established national policies and
traditions and those involving arrangements of a more or less temporary nature
usually take the form of executive agreements.
189. Note the following provisions of the EDCA:
“Article III
4. The Philippines hereby grants to the United States, through bilateral
security mechanisms, such as the MDB and SEB, operational control of Agreed
Locations for construction activities and authority to undertake such
activities on, and make alterations and improvements to, Agreed Locations.
United States forces shall consult on issues regarding such construction,
alterations, and improvements based on the Parties’ shared intent that the
technical requirements and construction standards of any such projects
undertaken by or on behalf of the United States forces should be consistent
with the requirements and standards of both Parties.
Article V
2. The United States shall return fo the Philippines any Agreed Locations, or
any portion thereof, including non-relocatable structures and assemblies
constructed, modified, or improved by the United States, once no longer
required by United States forces for activities under this Agreement. The
Parties or the Designated Authorities shall consult regarding the terms of
return of any Agreed Locations, including possible compensation for
improvements or construction.
4. All buildings, non-relocatable structures, and assemblies affixed to the
land in the Agreed Locations, including ones altered or improved by United
States forces, remain the property of the Philippines. Permanent buildings
constructed by United States forces become the property of the Philippines,
once constructed, but shall be used by the United States forces until no longer
required by United States forces.
Article XII
4. This Agreement shall have an initial term of ten years, and thereafter, it
shall continue in force automatically unless terminated by either Party by
giving one year’s written notice through diplomatic channels of its intention
to terminate this Agreement.”
190. First, the EDCA provides for the construction of facilities which shall be
for the exclusive use of US military forces, with nominal ownership being with
the Philippines. Clearly, this involves actions which have implications which
may be permanent in nature.
191. The question also arises in the “rotational”
presence of troops in the country. Lest it be forgotten, the “rotational”
troops brought about by the VFA has resulted in a continued presence of US
forces in Mindanao since 2002. Thus, the term “rotational” cannot be used to
deny that the EDCA implies a permanent and not a temporary arrangement. On the
contrary, that the US troops will be rotating in and out of the country means a
constant, permanent presence.
192. The term of EDCA, while merely being ten years,
automatically renews. The phrasing is clever to be sure, making it appear that
the treaty has a lifetime. However, given the automatically renewing nature of
it, there can be no doubt that the same have implications, which may be
permanent in nature.
193. To allow the Executive to get away with bypassing the
Senate as it did with the EDCA, is to open the floodgates to the potential
entry into agreements by the Executive by merely name-checking previous
treaties even if their contents are completely different from each other.
194. This violates the system of checks and balances which
is a cornerstone of our democracy. This will give the Executive unfettered
power to bargain away our democratic freedoms and sovereignty. This cannot and
must not stand!
195. Ultimately, the Senate may well concur with the EDCA as
it is. This Senate may decide that the times call for such an agreement.
However, they cannot be deprived of the opportunity to do so.
196. It cannot be emphasized enough that the task of
ensuring freedom and liberty lies in the legislature as well, which is why the
Constitution provides that certain government acts must have its concurrence.
To bypass the Senate for whatever reason is a betrayal of the highest order. As
the eminent Justice Oliver Wendell Holmes stated:
Great constitutional provisions must be administered with
caution. Some play must be allowed for the joints of the machine, and it must
be remembered that legislatures are ultimate guardians of the liberties and
welfare of the people in quite as great a degree as the courts.
APPLICATION FOR THE ISSUANCE OF A WRIT OF PRELIMINARY PROHIBITORY INJUNCTION AND/OR
A TEMPORARY RESTRAINING ORDER (TRO)
199. Moreover, it is clear from the foregoing that there is a violation of the
Petitioners’ rights as taxpayers, who suffer and will continue to suffer severe
injury and damage from the expenditure of public funds to enforce or implement
the unconstitutional provisions of the EDCA.
200. The acts of Public Respondents, if not immediately
restrained or enjoined, will cause grave and irreparable injury to Petitioners,
as Filipino citizens, and taxpayers, as the implementation or impending
implementation of the unconstitutional provisions of the EDCA shall violate the
fundamental law of the Republic of the Philippines.
201. For the same reasons, the commission and continuance of
the implementation of the EDCA during the pendency of this petition will work
injustice to Petitioners, and the nation.
202. Hence, if the implementation of the EDCA is not
immediately enjoined, Petitioners and millions of Filipinos will suffer great
or irreparable injury before the matter can be heard by the Honorable
Court.
203. Thus, Petitioners respectfully pray that the Honorable
Court immediately enjoin Public Respondents from implementing the EDCA, pending
the resolution of this petition, through the issuance of a preliminary
prohibitory injunction and/or a temporary restraining order. Petitioners
also pray for the exemption from the posting of a bond in view of the
transcendent nature of the instant petition.
PRAYER
WHEREFORE, premises considered, Petitioners most respectfully pray that this
Honorable Court:
1. Pending the resolution of this Petition, immediately
issue a Temporary Restraining Order and/or Writ of Preliminary Prohibitory
Injunction, prohibiting the Public Respondents from implementing the ENHANCED
DEFENSE COOPERATION AGREEMENT, and the Public Respondent Secretary of the
Department of Budget and Management from releasing public funds for its
implementation;
2. After due deliberations, DECLARE that the ENHANCED DEFENSE COOPERATION
AGREEMENTis UNCONSTITUTIONAL and VOID for patently violating the pertinent
provisions of the 1987 Philippine Constitution and for being grossly
disadvantageous and contrary to the national interest;
3. After due deliberations, permanently prohibit Public
Respondents from funding and implementing the EDCA;
4. Finally, DECLARE that the ENHANCED DEFENSE COOPERATION
AGREEMENTis a treaty that requires Senate concurrence.
Other just and equitable reliefs under the premises are likewise prayed for.
Makati City for City of Manila, 26 May 2014.
ROQUE & BUTUYAN LAW OFFICESCounsel for Petitioners1904 Antel Corporate
Center121 Valero Street, Salcedo VillageMakati City Email:
mail@roquebutuyan.comTel. Nos. 887-4445/887-3894; Fax No: 887-3893
By:
H. HARRY L. ROQUE, JR. Roll No. 36976 PTR No. 4264493/Jan 30, 2014/Makati IBP
No. 01749/Lifetime MCLE Exemption No. IV-000513 (issued on Feb 15, 2013)
JOEL R. BUTUYAN Roll No. 36911 PTR No. 4264495/Jan 30, 2014/Makati IBP No.
01742/Lifetime MCLE Compliance No. IV-0011417 (issued on Jan 11, 2013)
ROMEL R. BAGARES Roll No. 49518 PTR No. 4264492/Jan 30, 2014/Makati IBP No.
961461/Jan 29, 2014/Socsargen MCLE Compliance No. IV-017519 (issued on Jan 25,
2013)
GEEPEE A. GONZALES Roll No. 59686 PTR No. 4264494/Jan 39, 2014/Makati IBP No.
961252/Jan 27, 2014/Oriental MindoroMCLE Compliance No. IV-0005346(issued on
Mar 28, 2012)ETHEL C. AVISADORoll No. 56254PTR No. 4281935/Feb 12,
2014/MakatiIBP No. 961251/Jan 27, 2014/DavaoMCLE Compliance No.
IV-019563(issued on May 2, 2013) Copy furnished:
Executive Secretary Paquito Ochoa, Jr.Premier
GuesthouseMalacañang Compound,San Miguel, Manila
Secretary VolataireGazminDepartment of National DefenseDND Building, Segundo
Ave. Camp General Emilio Aguinaldo Quezon City
Secretary Albert del RosarioDepartment of Foreign
Affairs2330 Roxas BoulevardPasay City
Secretary Florencio AbadDepartment of Budget and Management DBM, Gen.
Solano St., San Miguel, Manila.
