15 Senators agree EDCA a ‘prohibited treaty?’
The Senate on Tuesday adopted a resolution expressing that it should concur any treaty ratified by the President of the Philippines.
Voting 15-1-3, the senators adopted Senate Resolution No. 1414, authored by Sen. Miriam Defensor Santiago, which stated that the absence of their concurrence, the Enhanced Defense Cooperation Agreement (EDCA) is a treaty prohibited under the Constitution.
Besides Santiago, those who voted in favor of the resolution were Senators Juan Edgardo ‘Sonny’ Angara, Nancy Binay, Joseph Victor Ejercito, Francis ‘Chiz’ Escudero, TG Guingona, Lito Lapid, Loren Legarda, Ferdinand ‘Bongbong’ Marcos, Serge Osmeña III, Aquilino ‘Koko; Pimentel III, Grace Poe, Ralph Recto, and Cynthia Villar.
The 15th vote came from Sen. Pia Cayetano, who was not at the session hall during the vote, but later manifested that she was voting in the affirmative.
The plenary approval formalizes Senate Resolution No. 1414 as the Senate’s position on the question of the validity and effectivity of the EDCA, on which the Supreme Court is allegedly set to decide.
Only Sen. Sonny Trillanes voted against the resolution, deferring to the Supreme Court. Under the same premise, Senate President Frank Drilon and Sen. Juan Ponce Enrile abstained. Sen. Bam Aquino, who was not in session during the vote, later manifested his abstention.
In her sponsorship speech, Santiago, chair of the Senate committee on foreign relations, argued that the EDCA “belongs to the category of prohibited treaty, namely, it is a treaty of foreign military bases, troops, or facilities without the concurrence of the Senate.”
“The Resolution that we will approve is Constitutional Law. The strong sense of the Senate that it embodies is a confirmation of its supremacy over any self-serving speculation that is forced subjectively on the Constitution,” the senator said.
Santiago, a constitutional expert, insisted that “other than concurrence of the Senate, no authority expressly transforms a treaty into law.” She cited the Treaty Clause of the Constitution, Article 7, Section 21, which states that:
No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate, the resolution said.
Santiago said the need for Senate concurrence was made an integral part of the nature of a special kind of treaty — that which involves “foreign military bases, troops, or facilities” — by the Constitution, Article 18, Section 25 which states that foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate.… and recognized as a treaty by the other contracting State.
Santiago said the EDCA fell under this prohibition, as it had substantive provisions on the establishment, location, stationing of the U.S. military forces and storage of military facilities in Philippine territory.
“That such a prohibited ‘treaty’ has been concluded by the Executive Department as an executive agreement testifies to its inherently prohibitory nature under the Constitution,” the senator said.
She further claimed that the prohibitory character of Article 18, Section 25 trumps Article 8, Section 4(2), which Macalañang uses to defend the EDCA as an executive agreement. The Constitution, Article 8, Section 4(2), states that:
”All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc…. shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.”
“On the remote assumption that this provision may be applicable to a case involving the constitutionality of a treaty or executive agreement, it must exclude from its applicability the prohibited treaty as described in the Constitution, Article 18, Section 25,” Santiago said.
The Senate statement on EDCA comes a week before U.S. President Barack Obama’s expected arrival in the Philippines for the Asia-Pacific Economic Cooperation (APEC) meet on November 18 and 19, along with heads of state of other APEC members.
“We begin with the confidence that Senate Resolution No. 1414 is an expression of Constitution Law on the matter of critical importance to the integrity of the Senate and the honor of this Republic,” Santiago said.
The senator added that she hopes the Supreme Court, to which she sent a copy of the proposed resolution in June, will consider the strong statement from the Senate “with decisive concern.”
In opposing the resolution, Trillanes explained that the EDCA is not a treaty but a mere executive agreement and implementing agreement of the mutual defense treaty between the Philippines and the US.
Santiago explained that the mutual defense treaty has been terminated a long time ago and that the Constitution does not provide executive agreement.
Santiago said the textual composition of EDCA “in itself evidences that it belongs to the category of prohibited treaty, namely, it is a treaty of foreign military bases, troops, or facilities” without the concurrence of the Senate.
In explaining their abstention vote, Drilon and Enrile said the Senate needs not to tell the Supreme Court (SC) on what to do particularly on EDCA. (PNA / By Jelly F. Musico)
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