Oral arguments versus EDCA

The Supreme Court heard oral arguments yesterday on why the Enhanced Defense Cooperation Agreement is unconstitutional. There were five petitioners who argued: Former Senator Rene Saguisag, who made opening statements; Dean Pacifico Agabin who discussed issues of justiciability and standing; I discussed the crux of the petition, that is that EDCA allows the presence of foreign troops and facilities without a Treaty duly concurred n by the Senate; Rachel Pastores who argued that EDCA is for all intents and purposes, a bases agreement; and Evalyn Ursua who discussed all other issues.

The hearing took almost four hours with questions from Justices Bernabe, Leonen, Carpio, De Castro, Perez and Chief Justice Sereno.

The most asked question was whether instead of declaring the EDCA as unconstitutional, the court could order the President to transmit it instead to the Senate for concurrence. Both Dean Agabin and I did not interpose any objection to this possibility. I did underscore though that since the language of the prohibition against the presence of military bases, troops and based is prohibitory in nature, the fact that EDCA is being implemented without compliance with the imperative condition that it be pursuant to a treaty concurred in by the Senate, this means that EDCA is null and void. I suppose the Justices were concerned that an outright declaration of unconstitutionality would affect our bilateral relations with the US and may prejudice the President’s power to deal with security threats in the country. I personally think that a referral of the EDCA to the Senate would mean a victory for the petitioners. This is because it is precisely our submission that foreign troops, bases and facilities could only be allowed pursuant to a treaty duly concurred in by the Senate.

Justice Carpio made a very interesting point. He said that while collective security treaties, such as the Mutual Defense Treaty, are legal, the US has breached its obligation to come to our defense twice : when China took from our possession both Mischief Reef and the Scarborough Shoal. He then asked me what advice I would give to the President relative to the west Philippine Sea dispute: I said, build our own defense capability, build alliances with out neighbors, or strengthen our ties with the US, among others. I answered all of the options except for strengthening our ties with the US since China already views us as a mere lackey of the US, I explained that with the billions of pesos that we have lost in PDAF and DAP, we could already afford the cost of modernizing our navy. I am unsure though until now what Justice Carpio was leading to since he ended his interpellation by observing that China has also been aggressive against Vietnam despite the latter’s staunch independent foreign policy.

Justice De Castro, a former State Counsel in the DOJ and former chair of the task force on jurisdiction when the US- Philippines bases agreement was still in force, asked why treaties have the force and effect of law. I responded that it was precisely because the legislature, through the Senate, gave its concurrence. She concurred and observed that the Senate needs to concur because the presence of foreign troops in our country normally requires a treaty to ensure that we can exercise criminal jurisdiction for non-service related offenses.

For his part, Justice Leonen inquired on the textual provision of section 21, Art. 8, which requires that treaties and international agreements require Senate concurrence. He asked me if I could make an alternative argument that EDCA is an international agreement that also requires Senate concurrence. I believe my answer to the question was that EDCA cannot be an international agreement because Sec. 25 of Art 18 applies specially to the presence of troops, facilities and bases in the country. Accordingly, the requirement is that the EDCA be in the form of a treaty. I’m not sure if I was correct in this assertion but the language of the Constitution appears to support my submission.

Atty Rachel Pastores, the most junior of the lawyers who argued for the petitioners, took a beating particularly from the Chief Justice who argued that we should give EDCA a try given that the AFP itself admits to short-term operation difficulties. In any case, Atty Pastores, despite the barrage of questions, stood her ground and invoked the duty of Filipinos to defend national sovereignty.

Asked by the media later if the questioning of the Justices was reflective of how they would rule, I had no problems in declaring that my experience has been that there is no correlation between the questions of the Justices and how they vote. I cited the example of the Chief Justice whose questioning in the oral arguments against the Cybercrimes Prevention Act appeared adverse to the petitioners. She later dissented and wrote an opinion declaring the law as unconstitutional.

United Nations (UN) Free speech special rapporteur in dialogue with families of massacre victims

Invitation for Media Coverage
Center for International Law (CenterLaw)
For Reference: Harry Roque, Jr: 09175398096

Prof. David Kaye, the new UN Special Rapporteur on Freedom of Opinion and Expression, will hold a dialogue by video link with widows of the Maguindanao Massacre today at 1:30 pm at the Sta. Ana Room, 3/F of the University of the Philippines College of Law.

The dialogue will be moderated by Prof. Harry Roque, Jr. chair of the Center for International Law and lead counsel for the families of 15 victims of the massacre.

As Special Rapporteur, Prof. Kaye seeks to bring to the attention of the UN key issues on free expression around the world, including the safety of journalists, internet censorship, electronic surveillance, hate speech and incitement to violence.

The video-link is therefore both significant and historic as an activity to commemorate the 5th anniversary of the Maguindanao Massacre, which has been described by international groups as the single worst attack on a free press in recorded history.

For a background on Prof. Kaye, click http://www.law.uci.edu/faculty/full-time/kaye/.

Request for Coverage : Laude family to file “Petition-In-Intervention” against EDCA at SC today

Centerlaw Release
References: Professor Harry L. Roque Jr. 09175398096 and Atty. Gilbert T. Andres 09228952111

Julita S. Laude, the mother of Jennifer Laude, along with Marilou and Michelle Laude, Jennifer’s sisters, will file a “Petition-In-Intervention” against the Enhanced Defense Cooperation Agreement (EDCA) at the Supreme Court today, 17 November 2014, at 1:30 pm.

Jennifer, a 26-year old Filipino transgender, was brutally murdered on October 11, 2014 in Olongapo City. The murder suspect is US Marine PFC Joseph Scott Pemberton, a participant in the joint Philippine-US training exercises in the country under the Visiting Forces Agreement.

Thrust and parry on EDCA

The Supreme Court scheduled oral arguments on the constitutionality of the Expanded Defense Cooperation Agreement on Tuesday, 18 November. The core issue for determination by the Court is whether the EDCA is a treaty, which allows the presence of foreign bases, troops or facilities in the country. If so, Sec 25, Art VIII of the 1987 Constitution requires that it be in the form of a treaty, duly concurred in by a 2/3 vote of all the members of the Senate; duly recognized by the other contracting party as such; and when so required by the Senate, duly ratified by a majority vote of the people in a referendum called for the purpose.

The controversy, on the basis of the pleadings submitted by the parties, is not whether the EDCA allows the presence of troops and facilities in the country as it clearly does. What is at issue is whether as claimed by the government, the EDCA is a mere implementing agreement of the Mutual Defense Treaty of 1951, which was duly concurred in by the Senate, and by the Visiting Forces Agreement, whose constitutionality has been upheld twice by the Supreme Court.

Similar to what I have done prior to the oral arguments on the constitutionality of the Cybercrimes Prevention Act which resulted in a draw decision with both petitioners and the state claiming partial victory, I will detail the thrust and parry of the parties on the seminal issue of whether EDCA requires Senate concurrence.

Petitioners submit that it does because EDCA implements a new national policy. In the case of Commissioner of Customs vs. Eastern Shipping, the Court ruled that treaties that need to be submitted for concurrence by the Senate are those that formulate a new policy. Those that merely implement existing ones or fix the details of existing ones do not require concurrence.

Why do petitioners claim that EDCA is a new policy? Because it makes the Philippines a partner of the United States in a new defense policy that has since rendered permanent US bases outside of its mainland unnecessary. This policy represents a radical departure from previous US defense policy anchored on the existence of permanent US bases in strategic parts of the world. Under this new policy, US Defense Undersecretary for Policy Douglas J Feith explained, “We are not talking only about basing, we’re talking about the ability of our forces to operate when and where they are needed.”

This policy is based not just on a major shift in strategic priorities, but also on economics. Simply put, the new policy is because the US can no longer afford the economic and political costs of permanent bases.

Moreover, it also forms part of a new US policy that has been described as a “pivot to Asia”. Under this scheme, the US will redeploy most of its naval resources into Asia. Currently, its existing naval presence is evenly split between the Pacific and Atlantic oceans.

Government, on the other hand, argues that Senate concurrence is not required because the EDCA is a mere implementing agreement of the Mutual Defense Treaty of 1951 and the Visiting Forces Agreement. Specifically, Acting Solicitor General Florin Hilbay argued that the EDCA, insofar as it authorizes temporary rotational presence of troops and pre-deployment of military supplies and facilities, merely implements the duty of the Philippines to improve its capacity and readiness under the Mutual Defense Treaty. The activities of US troops, on the other hand, according to the OSG, are mere restatements of the “activities” authorized to be undertaken by the Americans under the Visiting Forces Agreement.

Other issues up for argumentation include the issue of whether the EDCA authorizes the establishment of permanent US bases in the country. Petitioners will argue that given the scope and breadth of what the Americans can do outside of Philippine jurisdiction as specified in the EDCA, coupled with the fact that the agreement maybe be permanent since it is automatically renewed every ten years, that is its tantamount to permanent basing. Government will argue that it is temporary and falls under the scope of the VFA.

Other issues such as whether petitioners have the standing to sue (since none of them is an incumbent senator) and whether there is an actual case or controversy will also be discussed. Additionally, the dispute settlement procedure of the agreement is also up for discussion since Petitioner alleges that this infringes on the exercise of judicial powers, which falls within the exclusive jurisdiction of our courts.

The oral arguments will happen amidst the controversy created by the murder of the Filipino transgender, Jennifer Laude allegedly perpetrated by a US serviceman, Joseph Pemberton. Already, the murder case has put into serious doubt the compatibility of all existing agreements that we have authorizing the presence of foreign troops and facilities in the country with Philippine sovereignty. At the core of the controversy in the Laude case is the apparent failure of the Philippines to exercise jurisdiction over the person of the suspected murderer who remains continuously under US custody.

Clearly, the arguments to be heard this coming Thursday will go beyond whether the Senate concurrence is required for the EDCA. Unwritten yet in bold script is the issue of whether any such agreement violates the exclusive exercise of Philippines sovereignty and jurisdiction, and whether these limitations, if any, redound to the national interest.

Clearly, the issues for determination are of transcendental importance to every Filipino. Be there if you can.

This post first appeared on http://manilastandardtoday.com/2014/11/13/thrust-and-parry-on-edca/