Jugular issue on Edca

Of themany issues raised by the petitioners challenging the constitutionality of the

Enhanced Defense Cooperation Agreement (Edca) in the Supreme Court, the jugular, I
think, is the nature and extent of our governments control over the agreed locations
(ALs).
Brief background. The Edca was signed on April 28, 2014, by the Philippines and the
United States ostensibly to implement the MutualDefense Treaty (MDT) and the Visiting
Forces Agreement (VFA) earlier entered into by the two countries on Aug. 30, 1951 and
Feb. 10, 1998,respectively.
The MDT aims to maintain and develop their individual and collective capacity to resist
armed attack while the VFA seeks to strengthen their present efforts to collective
defense for the preservation of peace and security. Per its Art. I, the Edca deepens
defense cooperation between the Parties and maintains and develops their individual and
collective capacities, in furtherance of Article II of the MDT.
Both the MDT and the VFA had been concurred in by our Senate and upheld as not
unconstitutional by our Supreme Court. However, the Edca had not been submitted to
the Senate for ratification.
Due to my limited space, I will no longer explain the procedural questions (like the
petitioners alleged lack of legal standing) and policy issues (like the alleged lack of
assurance that the US will actually come to the aid of the Philippines in case of an
invasion by China).
Agreed locations. Under the Edca, US armed forces, US contractors and others as
mutually agreed, shall have the right to access and use [ALs that] may be listed in an
annex to be appended to this Agreement.
The Edca allows US forces, contractors, vehicles, vessels and aircraft to conduct the
following activities [inside the ALs]: 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 without rental or similar costs [but the] US forces
shall cover their necessary operational expenses
Further, the United States shall have operational control of [ALs] for construction
activities [but the Philippines] shall have access to the entire area of the [ALs]
consistent with operational safety and security requirements
Jugular issue. Petitioners argue that by yielding to the US forces the operational
control of ALs for construction activities without payment of rentals, taxes and other
costs, the Edca constitutes an unconscionable sellout of our sovereignty and
deprives the Philippines of its police, eminent domain and taxation powers.
Our Constitution 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
Petitioners contend that the ALs are really disguised military bases without the benefit of
a treaty concurred in by the Senate, because they can contain houses or barracks to
accommodate thousands of troops; they contain weapon armories, arsenals or silos; they
have secure storage buildings for prepositioned supplies and war materiel; they have
their own facilities for refueling, bunkering, and repairing warships or aircraft; they have
their own perimeter wall which will prohibit unauthorized entry; they have their own
telecommunication systems; and there are even launching pads or sites for the
deployment of troops and war materiel to other countries. In fact, they even have
separate facilities for water, electricity and other utilities
The government counsel, Solicitor General Florin T. Hilbay, counters that Edca, by its
own express terms, is only an executive agreement to implement the MDT and the VFA,
and not a treaty that needs Senate ratification.
He explains that Edca was entered into pursuant to the Presidents constitutionallygranted exclusive military and diplomatic power and the Court should not render the
President helpless or impair his ability to set up a national security apparatus in the face
of clear, present, and verified reports of activities that endanger the
integrity of the Philippine State.

On the petitioners contention that the United States could deploy nuclear weapons in
the ALs in violation of our Constitution, Hilbay points to Art. IV-6 of Edca plainly saying
that the prepositioned materiel shall not include nuclear weapons. He pits petitioners
allegation of disguised military bases against the Edcas provision clearly conceding the
Philippines ownership of the ALs and the governments assurance that our country
retains sovereignty over them.
In deference to the sub judice rule, I shall not comment on these arguments, except that
I believe the case will turn on how the parties explain the nature and extent of control
that our government exercises over the ALs.
I also think that if this were a US Supreme Court case, the conservatives would decide
based strictly on the textual provisions of the Constitution and original intent of its
framers. On the other hand, the liberals would interpret the Charter according to the
contemporary needs and paramount wellbeing of our people. (Please refer to my column
on legal philosophy on 10/26/14.)
I shall eagerly await the decision and separate opinions of our justices, which may open
windows to their ideological or philosophical leanings.
Comments to chiefjusticepanganiban@hotmail.com

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