Senate tackles EDCA today

MANILA, Philippines - The Senate will start the hearings today on the Enhanced Defense Cooperation Agreement between the Philippines and the United States to ascertain that EDCA does not violate the Constitution.

Foreign Affairs Secretary Albert del Rosario and Defense Secretary Voltaire Gazmin lead the list of resource persons who will be defending the EDCA before the Senate committee on foreign affairs led by Sen. Miriam Defensor-Santiago.

Defense Undersecretary Pio Lorenzo Batino, chairman of the EDCA negotiating panel, as well as panel members Ambassador Lourdes Yparraguirre, Ambassador Jose Eduardo Malaya III, Justice Undersecretary Franciso Baraan III and Defense Assistant Secretary Raymund Jose Quilop are also expected to attend the hearing. Acting Solicitor General Florin Hilbay has been invited to discuss the parameters and constitutionality of the agreement.

Santiago said the petitioners who questioned the EDCA before the Supreme Court are also invited to air their concerns. They include former senator Rene Saguisag, lawyer Harry Roque, Roland Simbulan of the Center for People Empowerment in Governance, Renato Reyes of Bayan, and Bayan Muna Rep. Neri Colmenares.

Dean Merlin Magallona of the UP College of Law has been asked to attend to represent the academe.

The EDCA was signed by the Philippines and US last April 28. It seeks to enhance implementation of the Mutual Defense Treaty (MDT) and allow increased US troop presence in the Philippines on a rotational basis.

Both governments say the agreement is not a treaty and therefore does not need Senate ratification.

Several petitions have been filed before the Supreme Court questioning the constitutionality of the agreement.

The petitioners argued that the EDCA violated the Constitution for allowing US troops to establish and operate military bases in the Philippines without any payment for the lease of space and facilities.

Both governments have said there will be no permanent US bases in the Philippines, but merely greater US troop access to local military facilities.

Santiago stressed the panel wanted to hear from experts whether the Senate needs to concur on EDCA. “Is it necessary? Is it beneficial? Is it practical?” she asked.

According to Santiago, Sections 1 and 2 of the Rules of Procedure Governing Inquiries in Aid of Legislation may be used as the basis of the EDCA hearing.

“The rules state that formal inquiries or investigations may extend to any and all matters vested by the Constitution in Congress and/or in the Senate alone and that inquiries may be initiated by the Senate or any of its committees if the matter is within its competence,” she said.

No prejudice

Santiago stressed the hearing over the EDCA would not go against the pending petition before the Supreme Court questioning the constitutionality of the agreement.

She said the case does not prevent the Senate from conducting its own public hearing.

“Under the Senate Rules, no proceeding before any government agency can inhibit the Senate from conducting its own proceedings,” Santiago said.

Santiago cited Romero v. Estrada, 583 SCRA 396 (2009), where the Supreme Court held that “ongoing judicial proceedings do not preclude congressional hearings in aid of legislation.”

She also clarified the Senate is not restricted to hold a hearing for purposes only of concurrence. The committee can hold a public hearing, which can be justified under the right to public information, she said.

“If the hearing is within the purview of the treaty clause of the Constitution, it is for the purpose of finding out whether the treaty is to be considered valid and effective and the public hearing can come out with the information that the EDCA is subject to Senate concurrence. It does not mean that the Senate foreign relations committee will require the Senate to vote on concurrence,” Santiago explained.

Constitutionality of the EDCA

Santiago said the Senate hearing will also tackle the constitutional ban on foreign military bases, troops, or facilities in the country, except under a treaty duly concurred in by the Senate.

“Contrary to the claim that the EDCA does not involve the establishment of military bases, the EDCA gives the US rights of possession, control, and use over areas of Philippine territory described as ‘Agreed Locations,’” Santiago said. “These rights amount to the maintenance of military bases in the Agreed Locations.”

She said the EDCA allows the maintenance of military bases in the country, which cannot be done without approval of the Senate.

As for the Senate’s concurrence on EDCA, Santiago said under the Constitution, the authority of the Senate to concur on a treaty is the decisive measure to make the EDCA constitutional, if at all the Senate will express concurrence.

If the Senate does not concur, then the treaty does not become a law.

“The Constitution is categorical. It requires Senate concurrence whether the document is called a treaty or any other international agreement,” Santiago said.