Gov’t lawyers insist EDCA is legal

By Ina Reformina, ABS-CBN News

MANILA – The government insisted the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States is constitutional and not contrary to any law.

Arguing before magistrates of the Supreme Court (SC) during Tuesday’s continuation of oral arguments on consolidated petitions challenging the agreement, the Office of the Solicitor General (OSG) stressed that President Aquino performed his mandate as commander-in-chief of the Philippine armed forces in authorizing the inking of the EDCA.

The OSG also said the agreement, contrary to petitioners’ claims of being a “new agreement which requires Senate concurrence,” simply “operationalizes and articulates the details of existing policies of the Philippines established under the Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA).”

Acting Solicitor General Florin Hilbay argued that the EDCA does not pave the way for the return of US bases in the Philippines, and that structures that shall be constructed by the Americans under the EDCA, as well as “agreed locations” under the agreement, will be under the “full control” of Philippine authorities.

“The US will not be building [structures] in the concept of an owner; they will be building for the Philippines… [these structures] will remain a property of the Philippines. Some areas will be restricted [from the US] consistent with our national security interests.

“The use and access [of ‘agreed locations’ and activities] will be approved by the Philippines, and use and access must be on rotational basis,” Hilbay said.

EDCA NEED NOT BE RATIFIED BY SENATE

The OSG debunked petitioners’ position that the EDCA is constitutionally infirm for not having been ratified by the Senate, among others.

The OSG also stressed that should the SC order the referral of the agreement to the Senate, that would undermine the powers of the president.

“A court-mandated referral to the Senate diminishes the power of the president as commander-in-chief… the determination of activities such as improvements of bases, constructions of barracks, military activities… are meant to consolidate decision-making in one person, the commander-in-chief.

“The EDCA involves the agreement for Philippine military bases and Philippine military facilities, the EDCA need only be approved by the president of the Republic of the Philippines. This is based on the principle of defensive preparation. The court cannot force the referral to the Senate without the president agreeing,” Hilbay said.

The OSG also insisted that the “silence” of the Senate on the matter should be taken to mean that it does not feel violated with its non-concurrence of the agreement.

Hilbay pointed out that not one senator is a petitioner in the case, and neither did the Senate pass a resolution questioning the signing of the EDCA.

“The Senate cannot be compelled to accept a responsibility it did not seek or does not want to assume. The silence of the Senate is nothing less than a positive endorsement of the EDCA. We ask the honorable court to consider the Senate’s silence as a nuance affirmation of the president’s power,” he said.

The OSG also argued that the EDCA is necessary because “we live in a world where the rule of law can sometimes be overpowered by sheer military might.”

“Our president has acted on the basis of the cards he has been dealt with, and arranged those cards… as commander-in-chief, chief executive… this court has no power to reshuffle those cards,” Hilbay said.