Saying it would be premature for them to rule on the matter, several Supreme Court justices on Tuesday said issues raised against the Enhanced Defense Cooperation Agreement (EDCA) would best be resolved in the Senate.
On the first day of oral arguments on the consolidated petitions against the EDCA, Associate Justices Jose Perez, Marvic Leonen and Bienvenido Reyes indicated that senators, and not the magistrates, were in a better position to decide on the EDCA petitions.
Under the EDCA, the US will be allowed to build structures, store and preposition weapons, defense supplies and materiel, station troops, civilian personnel and defense contractors, transit and station vehicles, vessels, and aircraft for a period of 10 years inside "agreed locations."
But the petitioners insisted the deal would trample on the Philippines' sovereignty.
But the petitioners insisted the deal would trample on the Philippines' sovereignty.
But Perez outrightly admitted: "I don't have the expertise to determine whether or not there is really a giving up of national sovereignty. They should be given to the Senate for the senate to do its work."
"There could be no argument for the unconstitutionality (of the EDCA)," Perez added.
Leonen, too, thought the petitioners were arguing in the "wrong forum."
"These arguments can be raised in the Senate. This should have been given to the Senate because they are your representatives," Leonen said.
Associate Justice Binevenido Reyes, for his part, said: "Without declaring the unconstitutionality of the EDCA, we instead throw it back to the Senate for hearing and consideration."
The petitioners insisted that before Defense Secretary Voltaire Gazmin was allowed to sign the EDCA in April, there should have first been concurrence by the Senate, through a two-thirds vote, as required under Article XVIII, Section 25 of the 1987 Philippine Constitution.
Leonen, however, observed that none of the petitioners sought a relief that would mandate President Benigno Aquino III to transmit the EDCA to the Senate for its concurrence.
Asked by Leonen if the petitions would become moot and academic in case Aquino eventually transmits the EDCA to the Senate, former University of the Philippines law dean Pacifico Agabin said: "No. Transmittal only complies with procedural requirements on transitory provision (under the Constitution)...but the treaty can still be contested on substantive grounds."
For her part, Chief Justice Maria Lourdes Sereno said it would be "premature" to rule on the issues raised by the petitioners because the bilateral deal has yet to be implemented.
"Is it not even better for this court to see the EDCA take its shape and then if there is a violaiton of law, bring the matter to the proper forum?" Sereno asked.
Rachel Pastores, one of the lawyer for the petitioners, disagreed, saying Filipinos do not have to wait for eventual constitutional violations due to the EDCA before the bilateral deal is struck down. She added that the Philippines' past experience with US military bases in the country showed that the EDCA would only work for the interest of the US.
Sereno responded: "Are we gonna say that because of the past, we cannot enter into new agreements just because we were not happy in the past (with former military bases)."
But Pastores said the EDCA itself, through its provisions, showed a "kind of agreement that violated territorial integrity."
Sereno however declared that she has not yet seen the EDCA violating the Philippines' territorial integrity, especially since the deal has yet to be implemented. "Maybe it is really not yet ripe for us to adjuficate," she said.
Sereno noted the benefits that the Philippines could get in terms of protecting its territory in case the EDCA is implemented and US aid is allowed, especially isince - she said - islands and fishing grounds in the West Philippine Sea were already being "overtaken" and that activities like blacksand mining has become prevalent.
Sereno said the Armed Forces of the Philippines itself had admitted in the EDCA that it needed foreign assistance since it has short-term capability issues.
"Why don't we test (EDCA) and see if we have absolutely no say on how those agreed locations are run," Sereno said.
But Pastores emphasized that there was nothing in the EDCA that states that the pre-positioned materiel from the US would be used to help defend the Philippines against foreign incursion.
Both Sereno and Leonen noted how none of the 24 sitting senators, whose concurrence the petitioners insisted was needed before the EDCA could be approved, seemed to have joined the petitioners in their plea.
Pastores, in response, said: "(But) silence of other senators doesn't mean they are in favor of (EDCA). It's the responsibility of the President to ask the Senate for its concurrence and the Senate cannot demand to have the treaty concurred by the Senate."
Associate Justice Estela Perlas-Bernabe, meanwhile, asked Pastores if she thought the "agreed location" under the EDCA was limitless. Pastores answered in the affirmative, and added there even were no guidelines yet on these "agreed locations."
Pastores also said that the EDCA was a "sell out of national sovereignty and national interest," adding that the deal was only in line with the US defense policy and protects the US strategic interest.
"The EDCA is an erroneous application of the President's foreign policy powers and exercise of patent excess of jurisdiction," said Pastores.
Harry Roque and Evalyn Ursua, two other lawyers for the petitioners, both stressed that the EDCA could not be considered as merely an implementing agreement for the uS-Philippine Mutual Defense Treaty and the Visiting forces Agreement.
"Just because the Philippines agreed to the MDT and the VFA does not mean it extends to all subsequent security engagements entered into by the Philippines with the US," Ursua said.
Roque also raised fears that the US might use the "agreed locations" under EDCA to bring in nuclear weapons to the Philippines.
"I find it hard to believe that the US will not store nuclear weapons here because that is the main reason for doing away with permanent bases," said Roque.
Upon questioning by Senior Associate Justice Antonio Carpio, Roque said he would rather advise President Aquino to increase defense spending, enter alliance with neighboring countries or sue China in an arbitration court, rather than strengthen alliance with the US as a treaty partner.
Former Senator Rene Saguisag, in his opening speech on behalf of the petitioners, said President Benigno Aquino III or Gazmin did not have the authority to decide on matters that would have "intergenerational consequences" to the Philippines.
It will be the Office of the Solicitor General's turn to lay down arguments defending the EDCA during the continuation of oral arguments on November 25.
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