Miriam: I'm ready for full-blown EDCA debate in Senate

From Rappler (Nov 24): Miriam: I'm ready for full-blown EDCA debate in Senate

The senator is 'very happy' that some Supreme Court justices hearing oral arguments on the constitutionality of the PH-US military pact have suggested referring it to the Senate


SENATE APPROVAL NECESSARY: Senator Miriam Santiago maintains that EDCA is a treaty that needs Senate ratification. Rappler file photo

Senate foreign relations committee chairman Senator Miriam Defensor Santiago welcomed discussions in the Supreme Court on the possibility of transmitting to the Senate the Enhanced Defense Cooperation Agreement (EDCA).

In a press briefing on Monday, November 24, the senator said she is "very happy" that some justices are aware of the constitutional requirement that the deal expanding American military presence in the Philippines should have been ratified by the Senate. (READ: Transmitting PH-US pact to Senate discussed at SC)
 

"It appears that certain Supreme Court justices expressed questions on why this matter was not first referred to Senate. I'm very happy with the way that events are turning because the Constitution is very clear. Under Article 7, Section 21, no treaty or international agreement shall be valid or effective unless ratified by at least two-thirds of all the members of Senate," Santiago said.
 

The Supreme Court is set to hear oral arguments on the constitutionality of the EDCA for the last time on Tuesday afternoon, November 25. Justices will hear government lawyers defend EDCA. Last week, it was the complainants' turn to assail EDCA's constitutionality.

Santiago said her committee is ready for a "full blown debate" on the EDCA. She has always maintained that EDCA cannot be valid without Senate ratification – a position that her colleagues in the upper chamber do not necessarily share. (READ: Was the Senate sidelined in the PH-US deal?)

"We, here in the Senate, particulary myself as chairman of the foreign relations committee, stand fully ready. We are ready when they are. When this (EDCA) was still being negotiated and up for signature, in my committe we already drew up a list of resource persons. We expect a full blown debate here," Santiago added.

Power of Malacañang or Senate?

Malacañang maintains that the agreement that allows the United States military to construct facilities and preposition defense assets inside military bases in the Philippines is within the powers of the President to enter.

However, critics of EDCA, the petitioners, argued that it is de facto military basing and thus requires Senate ratification.

"What I think of the Palace suggestion is unprintable. Maliwanag naman eh. Ni-recite ko pa from memory kasi ang ikli-ikli (It is very clear. I even recited it from memory becauset it's very short)," said Santiago.
 

"No treaty or international agreement – you can call it anyting you want, you can say military base or agreed loations, it's the same thing. The problem is they are playing rhetorical games," Santiago added.

Arguments vs EDCA

Acting Solicitor General Florin Hilbay said they are expected to "explain our position" on Tuesday. "[It] is really quite straightforward. EDCA implements both VFA (Visiting Forces Agreement) and the MDT (Mutual Defense Treaty). It is as simple as that."

During the oral arguments last week, several justices suggested that EDCA may be covering matters of foreign policy and national defense and thus should be left to politicians – Senate or Malacañang.

Some justices discussed transmitting the deal to the Senate, which they said can better discuss the agreement in the context of the current geopolitical realities.

Anti-EDCA counsel Pacifico Agabin, former University of the Philippines law dean, said transmitting the EDCA to the Senate as a matter of process will be a "half-baked" victory for them because they are also questioning substantive provisions in the agreement as unconstitutional.

On the other hand, there are justices who seemed to prefer leaving these matters to the President – a victory for Malacañang, if ever. This appears to be the position of Senator Francis Escudero, based on his interview last week. (READ: Justices to EDCA critics: How to defend West PH Sea?)

"Foreign policy is within the sole domain of the executive, not really of Congress or of the Supreme Court. So they (Malacañang) get to decide alin ba 'yung executive agreement at alin ba 'yung treaty? Alin ba 'yung isa-submit for ratification, alin 'yung hindi?" Escudero said.

[Foreign policy is within the sole domain of the executive, not really of Congress or of the Supreme Court. So they (Malacañang) get to decide which one is an executive agreement and which one is a treaty. Which one will be submitted to the Senate for ratification and which one won't?]

Escudero noted that the Senate previously conducted hearings on EDCA. "Nagkaroon sila ng hearing at briefing about it, if you remember ha, on EDCA. Kasi at that time it was newly signed, wala namang isyu eh," Escudero said in an interview last week. (They had hearings and briefings about EDCA, because at that time, it was newly signed, there were no issues raised against it.)
 

Senators have individually commented on certain provisions of EDCA but no resolution was filed to get the official position or sentiment of the chamber. (READ: Senators pinpoint 7 flaws in EDCA and 'EDCA allows US military to build anywhere in PH')
 

Escudero also noted that the Visiting Forces Agreement (VFA), which allowed the return of US troops in the Philippines, is a treaty that was ratified by the Philippine Senate but is only an executive agreement as far as the US government was concerned. "Itong EDCA pinantayan na lang siguro ng gobyerno 'yung Amerika, executive agreement sa kanila, executive agreement din sa atin," Escudero said. (With EDCA, I think our government just followed what the US did – it's an executive agreement in the US, it's an executive agreement on our part as well.)

Senate is proper venue?

Santiago said she interpreted the oral arguments last week as a reminder to the petitioners, the EDCA critics, that "they did not proceed logically" when they went straight to the Supreme Court instead of the Senate.

"I'm very suprised that the petioners did not file a petition with the Senate for the ratification process to have begun. I’ve just been raring to," said Santiago, an expert on international law.

"You have to follow the judicial ladder. In our Constitution, you see that the first step is to go to the Senate and see if that document is going to be alive or dead," said Santiago.

Justice Marvic Leonen asked a similar question during the oral arguments last week. He said it was curious that petitioners did not ask for the mandatory transmittal of EDCA to the Senate. The petitioners said they also want EDCA declared unconstitutional based on substantive grounds because the agreement is supposedly heavily in favor of the US.

http://www.rappler.com/nation/75969-miriam-santiago-senate-edca