Gov’t ready for EDCA cases

The government is prepared for challenges that may be filed with the Supreme Court (SC) against the Enhanced Defense Cooperation Agreement (EDCA) with the United States, according to Malacañang.

Speaking to reporters yesterday, presidential spokesman Edwin Laci- erda said it would not be a surprise if cases would be filed with the SC to question the agreement.

“We believe in certain principles outlining, governing the Enhanced Defense Cooperation Agreement,” he said. “If there are some people who would choose to

avail themselves of judicial processes to question the constitutionality, the government is prepared to defend the EDCA.”

Lacierda said EDCA is an executive agreement that does not need Senate ratification.

EDCA is not a new treaty, but an agreement done in accordance with the 1951 Mutual Defense Treaty and the Visiting Forces Agreement (VFA), he added.

Lacierda said people, including senators, have different views on the matter.

“As always...we are a democracy,” he said.

“Some people may hold different views, opinions on the nature of the Enhanced Defense Cooperation Agreement... we believe that it is constitutional.”

Senate President Franklin Drilon said the best way to settle the legal questions regarding EDCA is to bring them before the SC.

“It would be wise to bring up to the Supreme Court the debate on the Enhanced Defense Cooperation Agreement, for it is only the high court that can resolve with finality if the EDCA is a treaty that requires the concurrence of the Senate, or an executive agreement which the executive has the power under the Constitution to execute and implement,” he said.

Drilon said he expects the Senate to hold a public hearing on the EDCA in light of the various questions raised by his colleagues.

“Inevitably, there will be questions to which the responses will require an executive session as it will touch on matters pertaining to national security,” he said.

“However, I emphasize that whether or not an executive session would be conducted will depend upon the chairperson and the committee members who will conduct the hearing.”

The concerns raised about EDCA’s legality are legitimate and valid, Drilon said.

Senate committee on foreign relations chairman Miriam Defensor-Santiago believes that EDCA is a treaty that must be sent to the Senate for ratification.

Sen. Antonio Trillanes IV said EDCA is an executive agreement, and that no further action from the Senate is needed.

Trillanes said any senator who wants to have a public hearing on EDCA is free to file a resolution for this purpose and “I will hear it definitely.”

The executive branch’s position that EDCA is an executive agreement would be sustained in the SC, he added.

Trillanes said EDCA contained no new concepts since this was based on the provisions of the Mutual Defense Treaty.

“Nobody can claim that this agreement lacked any transparency,” he said.

“If any senator feels the information is inadequate, any senator can request for a briefing at their own time.”

Trillanes said officials of the Department of National Defense (DND) briefed him about the details of the agreement prior to its signing.

He was able to provide inputs to the agreement, and that he was even able to talk to President Aquino about it, he added.

Not just the US

Lacierda countered observations that only the US would gain from the agreement since the Philippines did not get a categorical commitment from President Barack Obama that the US would defend the country from any attacks from China under the Mutual Defense Treaty.

“The statement of President Obama and the statements of the other US officials who have spoken before him show a consistency in our position,” he said. “And they have given their word... We have treaties on hand to invoke should the case arise. We have this Enhanced Defense Cooperation Agreement that we just recently signed... plus the fact that President Obama said ‘the commitment of the United States to the Philippines is ironclad’. There can be no greater assurance on that.”

Lacierda said the agreement would be beneficial on many fronts, including disaster response and not just the territorial and maritime dispute with China.

“It speaks more than our concern with China,” he said.

“Again, our concern with China, insofar as the dispute is concerned, is only one of the negatives of so many bright spots in our dealings with China.

“So we cannot contain ourselves and how we see China with jaded eyes of conflict, but rather of deep people-to-people and trade and cultural ties with China.”

Lacierda said enhancing the country’s military and defense capabilities, as well as interoperability with a strategic partner, was good for peace and stability in the region.

“How China looks at it... would depend on their perspective. We have, time and again, both Presidents have mentioned the purpose for this defense cooperation agreement... I could not speak for the Chinese with respect to how they view this,“he said.

“But again, when there was a natural calamity that visited us very recently, even China helped us… so it’s something China can share with us.”

Lacierda urged the public to look at EDCA, which has been uploaded on government websites for the sake of transparency.

“We believe that this Enhanced Defense Cooperation Agreement will not only benefit them, but will also benefit us in terms of enhancing our military capabilities, improving our training, sharing of resources, for instance. What is important, for instance, is interoperability and also capacity building and that’s what we’re doing,” he said.

“How can we do mutual assistance when one side is not up to par with the other side? So we need to improve the level of capabilities insofar as where we are lacking. That’s where we can enhance the training or the capability of our Philippine military.”

Lacierda said the modernization of the country’s military hardware was a priority as well. “You know, one of the things that we want to focus on is the importance of rule of law, which is the basis of prosperity and stability. And this is where we feel, as a country, the defense cooperation agreement will benefit both the United States and the Philippines,” he said.

“Plus, also, an enhanced feature on this EDCA is the emphasis on humanitarian assistance, on disaster response, which we saw very clearly in the aftermath of Typhoon Yolanda.”

Lacierda said the language of the EDCA was in line with the Constitution as the panel kept this in mind during the negotiations.

“And, in fact, the principles in our Constitution regarding bases, regarding nuclear weapons – the prohibition of nuclear weapons – are evident in the provisions of the EDCA,” he said.

“President Obama said... ‘We are not establishing or reclaiming bases again in the country.’ There is no such thing,” Lacierda said, adding the issue on the jurisdiction over US forces on criminal and other cases was not in EDCA but in the VFA.

“Under EDCA, the parties agreed to resolve any dispute arising under this agreement exclusively through consultation between the parties,” he said.

“So you see the determination and commitment of both parties to resolve any conflict – to do conflict resolution within themselves. The second sentence says: ‘Disputes and other matters subject to consultation under this agreement shall not be referred to any national or international court, tribunal or other similar body or to any third party for settlement unless otherwise agreed by the parties.

“Now, this provision... Article 11 is limited to any disputes arising from this agreement. So your question is kind of mixed. Your question assumed that criminal jurisdiction is going to be disputed here in this particular agreement. It is not. When it comes to criminal jurisdiction that has been resolved. It is found in the Visiting Forces Agreement.”

De Villa sees

continued Chinese threat

Former defense secretary Renato de Villa told The STAR yesterday China will continue aggressive action in the West Philippine Sea despite the signing of EDCA.

“I think the Chinese will not change their objective, they will not change their strategy notwithstanding the presence of EDCA,” he said.

“I think it ( bullying) will go on because they know and they could calculate that the US is committed only to the Mutual Defense Treaty and very unfortunately, the Spratlys and our disputed territories in West Philippine Sea are not included in the Mutual Defense Treaty.”

De Villa said the 1951 treaty covers the Pacific area or those within the boundary of the Treaty of Paris between the US and Spain.

“I think we should think of it in terms of what is the reality on the ground,” he said.