Supreme Court upholds EDCA

The Supreme Court has upheld the constitutionality of the Enhanced Defense Cooperation Agreement between the Philippines and the United States.

In its first en banc session for the year, the high tribunal affirmed the validity of the pact that provided for the increased rotational presence of US troops in the country.

The EDCA was upheld by a vote of 10 in favor, four against and one taking no part.

Those who dissented to the majority ruling were associate justices Teresita Leonardo-De Castro, Arturo Brion, Estela Perlas-Bernabe, and Marvic Leonen.

Senior Associate Justice Antonio Carpio has written a concurring opinion while De Castro, Brion, and Leonen wrote their respective dissenting opinions.

Under the agreement negotiated by President Benigno Aquino III's government, the US will be allowed to build structures, store as well as pre-position 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.

The constitutionality of the pact was upheld amid an ongoing dispute between the Philippines and China due to overlapping claims in the South China Sea.

It also comes just as the foreign and defense chiefs of the Philippines and the United States will hold a meeting in Washington next week. The two sides will discuss all fronts of the two countries’ relations, specifically economic, political, security and defense issues.

The US has also expressed its opposition to China's claims in the disputed waters, citing the need for freedom of navigation in the area.

China's claims, based on a unilateral nine-dash-line map, is now the subject of a Philippine case before the Permanent Court of Arbitration in The Hague.

Not a treaty

SC spokesman Theodore Te said the high court upheld the agreement's constitutionality "on the ground of Article 18, Section 25 of the Constitution, which allows the President to enter in an executive agreement on foreign military bases if it is not an instrument that allows foreign military bases or it aims to implement existing law or treaty holding that EDCA is one such agreement."

"As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with existing laws and treaties that it purports to implement," said the SC in a ruling penned by Chief Justice Maria Lourdes Sereno.

The SC ruled that the President had the power to enter into executive agreements, which the tribunal said are "different from treaties. This is well-recognized and long upheld by the court."

The high court stressed that the defense pact "is not the instrument that allows troops to enter, as the Visiting Forces Agreement has already done that."

The tribunal disagreed with the Senate's position that the EDCA should have first been submitted to the Senate in the form of a treaty for concurrence by at least two-thirds of all its members.

"The EDCA provides for arrangements to implement existing treaties allowing entry of foreign military troops or facilities under the VFA and the [Mutual Defense Treaty], and thus may be in the form of an executive agreement solely within the powers of the President and not requiring Senate concurrence under Article XVIII, Sec. 25," read the decision.

The SC said no court can tell the President to desist from choosing an executive agreement over a treaty to embody an international agreement.

"Rather, in view of the vast constitutional powers and prerogatives granted to the President in the field of foreign affairs, the task of the Court is to determine whether the international agreement is consistent with the applicable limitations," it added.

The SC said the President has the option to choose the form of an agreement other than through a treaty, provided that the agreement dealing with foreign military bases, troops or facilities is not the principal agreement that first allowed the entry or presence in the Philippines.

Likewise, the executive agreement must be consistent with the Constitution, as well as with existing laws and treaties.

The SC said the respondents in the case succeeded in "discharging the burden to show that [the EDCA] is a mere implementation of existing laws and treaties concurred in by the Senate."

Will boost PHL defense capability

The 10-year agreement, signed in 2014 but not implemented due to legal challenges, will see more US troops and warships rotate through the Philippines, and the hosts will receive help in building military facilities.

Reacting to the SC decision, Malacañang reiterated that the defense pact would boost the country's defense capability as well as the government's humanitarian and relief assistance capabilities.

“Iyong EDCA ay itinuturing ng pamahalaan na isang mahalagang bahagi 'nung imprastruktura para palakasin ang ating Sandatahang Lakas,” said Communications Secretary Herminio Coloma Jr.

“Hindi lamang para sa pagtatanggol sa bansa o hindi lamang ukol sa seguridad ng bansa kung hindi rin sa kapabilidad nito na makapaghatid ng humanitarian and relief assistance sa panahon ng kalamidad,” he added.

The Philippines negotiated the accord to help the country improve its military capabilities and draw the United States closer, partly to counter a fast-expanding Chinese presence in disputed parts of the South China Sea.

US President Barack Obama also pushed hard for the EDCA as part of his so-called strategic "pivot" to Asia that has involved strengthening the American military presence in the region. It was a main topic of conversation between Obama and Aquino in last November's bilateral meeting in Manila.

However, the EDCA faced immediate legal challenges from groups opposed to US military involvement in the Philippines, a US colony from 1898 to 1946.

The Philippines hosted two of the largest overseas US military bases until 1992, the year after the Philippine Senate voted to end the leases in the face of strong anti-US sentiment.

Philippine military chief General Hernando Iriberri immediately welcomed Tuesday's ruling, saying the accord would help the country address short-term "capability gaps" and modernise its armed forces.

Iriberri also emphasized the pact would help the Philippines "maintain maritime security", a term commonly used when referring to efforts to contain China's expansion in the sea.

Shortly after the high tribunal's announcement, the US Embassy in Manila also released a statement lauding the development.

"The US welcomes the Supreme Court’s decision to uphold the Enhanced Defense Cooperation Agreement (EDCA), which will further strengthen the U.S.-Philippine bilateral relationship," the statement read.

"EDCA is a mutually beneficial agreement that will enhance our ability to provide rapid humanitarian assistance and help build capacity for the Armed Forces of the Philippines. We look forward to working closely with our Philippine partners on the implementation of this agreement," it added.

Petitions vs. EDCA

The SC denied the petitions filed separately by former senators Rene Saguisag and Wigberto Tañada, and by another group composed of Bagong Alyansang Makabayan and incumbent and former members of the House of Representatives.

In their petition, Saguisag and Tañada both claimed EDCA's terms and provisions were “lopsided in favor of the Americans.”

The second batch of petitioners, meanwhile, said the EDCA went against the Philippines' national interest, is disadvantageous to Filipinos, and is mainly motivated by the US strategic re-balancing towards Asia and is therefore in the service of US security and economic interests.

The petitioners warned that the EDCA would grant the US “carte blanche power to establish and operate de facto military bases anywhere on Philippine soil, minus the cost of paying for one.”

They also said the agreement would be a mere implementation of policies enshrined in the PHL-US Mutual Defense Treaty — a treaty whose constitutionality is being challenged for the first time before the high court with Saguisag and Tañada's petition.

Weakest armed forces

Filipino and US embassy officials declined to give details on Tuesday as to how quickly the pact would be implemented, or specifics such as which bases would be used by the Americans.

But Filipino officials previously said the United States would be offered  access to key bases, including those facing the South China Sea that would allow rapid deployment into the waters.

The Philippines and the United States are already bound by a mutual defense treaty signed in 1951 and a visiting forces agreement signed in 1998.

The Philippines, which has one of Asia's weakest armed forces, has for decades heavily relied on US military aid for weapons and training.

And thousands of American troops pass through the country for regular war games that are authorised under the 1998 agreement. US navy ships also often make port calls.

But in recent years the tensions with China have seen Aquino's government seek even greater US military and diplomatic support.

China claims almost all of the South China Sea, despite conflicting claims from the Philippines as well as Vietnam, Malaysia, Taiwan and Brunei.

In April 2012, after a tense stand-off with Philippine ships, Chinese vessels took control of a shoal just 220 kilometres (135 miles) off the main Philippine island of Luzon.

The Philippines has since become the most vocal critic of China's efforts to claim the waters, including its strategy of turning islets into artificial islands that can host military facilities.

With its own armed forces unable to counter China, the Philippines had no choice but to draw in the United States and its allies such as Japan, according to security analyst Rodolfo Mendoza.

"Our only option is partnership with the US and other allies," Mendoza told Agence France=Presse. —with Kathrina Charmaine Alvarez/NB/RSJ/JST, GMA News with Agence France-Presse