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OSG Files Memorandum EDCA is Valid

The Office of the Solicitor General (OSG) filed the government’s Memorandum in the cases filed against the Enhanced Defense Cooperation Agreement (EDCA) before the Supreme Court. The Supreme Court required the submission of memoranda after oral arguments, giving the parties one last opportunity to summarize and tie together their arguments before the high court rules on the case.

In its 42-page Memorandum, the OSG presented the government’s case for the EDCA as a valid executive agreement that could stand even without the concurrence of the Senate.

Senate Referral Unnecessary

Solicitor General (SolGen) Florin Hilbay argued against referral of the EDCA to the Senate. Assuming that the petitions are not dismissed based on jurisdictional grounds, the SolGen stated that the Court is tasked to “either to dismiss the petitions or grant them.” A referral to the Senate, the SolGen explained, already amounts to a declaration against the EDCA for noncompliance with Article XVIII, Section 25 of the Constitution. According to the SolGen, a referral to the Senate would diminish the President’s powers and result in an international embarrassment for the President, adversely affecting the country’s standing in the international community.

A court-mandated referral to the Senate was floated by Associate Justice Marvic Leonen during oral arguments. A previous decision of the Supreme Court, however, precludes this move. In Pimentel v. Executive Secretary, the Court ruled, “it is within the authority of the President to refuse to submit a treaty to the Senate.”

The SolGen concluded that referral to the Senate is “plain and simple delay.Even after the EDCA passes the Senate, petitioners are bound to demand the nullification of the agreement once again, bringing the process back to square one. This, according to the SolGen, will bring incalculable damage to our national security.

Executive Agreements Recognized in the Constitution

The SolGen also confronted the argument that executive agreements are not recognized in the Constitution, since Article VII, Section 21 only mentions “treaty” and “international agreement.” This theory, raised during oral

arguments, was also used in recent Senate hearings on EDCA, based on the assertion that “executive agreements” cannot be found in the Constitution. This view, according to the SolGen, “flies in the face of the text of the Constitution, the jurisprudence of [the Supreme Court], and the long-standing practice of the Executive Department.

The government’s Memorandum cited two separate instances where executive agreements are in fact mentioned in the Constitution in Article VIII, Section 4(2) and Article VIII, Section 5(2)(a). The existence of executive agreements as a distinct category of legal instruments subject to judicial review”, the SolGen argues, “is indisputable recognition of the power of the Philippine President to enter into such agreements.

The Memorandum also cited the long-standing practice of entering into executive agreements, both in the Philippines and in the US. This practice is supported by Philippine jurisprudence, through cases that affirm executive agreements as legal instruments that no longer require Senate concurrence. This, according to the SolGen, is also a recognition of the impracticability of submitting each and every international agreement to the Senate.

Petitioners Have No Standing

The Government scored petitioners for going to the Supreme Court without being qualified to ask for judicial relief. As a general rule, only the Senate as an institution may sue against any alleged impairment of its institutional prerogatives. In exceptional cases, individual incumbent Senators were allowed to file cases in behalf of their institution. However, the SolGen found it curious that only former senators joined petitioners. The Senate’s silence and non-participation in the petitions, the SolGen asserted, is an affirmation of the President’s characterization of the EDCA as an executive agreement: “To date, the Senate has not issued a resolution expressing its objection to the EDCA, much less authorized any of its members to file a suit on its behalf.”

The Supreme Court was cautioned against petitioners’ overuse of the “transcendental importance” exception, noting that it cheapened Constitutional safeguards and turned the Court into a venue for historical grievances and…purely symbolic claims.”

The EDCA Implements the MDT and VFA

The SolGen maintained that the EDCA shows the currency and credibility of the Mutual Defense Treaty (MDT) by communicating the vitality of the half-century old defense agreement: the EDCA’s provisions “evince a serious commitment by the US to entangle itself with the national security interests of the Philippines.”

The Visiting Forces Agreement was likewise cited as authorization for the presence of US troops, equipment, supplies, vessels, and aircraft in the country, and the conduct of a broad range of activities.

The SolGen defended the President’s decision to enter into the EDCA, saying that it is within the President’s powers as Chief Executive and Commander-in-Chief to prepare against threats to national security: “In choosing to enter into the EDCA, the President has made the decision to formalize pre-existing licenses into a framework agreement that clarifies the rights and obligations of the parties. Such decision is in response to the implementation gaps that the government seeks to address through the EDCA.

According to the memorandum, one way the EDCA addresses implementation gaps is by providing for the prepositioning of equipment and materiel, especially those for humanitarian assistance and disaster relief. The government maintained that based on the lessons learned during Typhoon Haiyan, prepositioning will allow for more rapid response during disasters.

Addressing concerns that the EDCA’s language on “Agreed Locations” will lead to the return of US military bases, the SolGen explained that Agreed Locations remain the property of the Philippines. As owners of the Agreed Locations, the Philippines has ultimate control, and can set parameters for their use and access by the US: “While the US may be permitted by the Philippines to construct and improve infrastructure in these Agreed Locations, the US will not be building in the concept of an owner. They will be building for the Philippines.The memorandum pointed out that the EDCA builds on consent mechanisms established in the VFA, which ensures that each activity, including use of Agreed Locations, will be limited in scope and duration.

Since the MDT and VFA already constitute prior, sufficient licenses for the EDCA, and because the agreement does not involve bases, the SolGen concluded that Senate concurrence is unnecessary and would only be “a legal superfluity.”

Assorted Issues

The last part of the memorandum addressed the mixed bag of objections petitioners threw against the defense agreement ranging from concerns over the grant of “operational control” to US forces, to allegations that the EDCA violates the country’s local government, construction, telecommunications, and tax laws. Sweeping aside these objections, the SolGen argued that petitioners can’t force application of the country’s local laws on another state.

Clarifying the meaning of operational control as applied by the armed forces of the Philippines and the US, the memorandum asserted that the term does not refer to control over a military base or activity.” The consent mechanisms under the MDT and VFA means that operational control is not an open license for the US.

Finally, the SolGen denied petitioners’ allegation that the EDCA provided the US tax exemptions. The EDCA, according to the memorandum, contemplates tax assumption, not exemption. The SolGen noted that tax assumption clauses are common in Build-Operate-Transfer (BOT) contracts as an incentive for private enterprise. It is reasonable to assume, the SolGen concluded, “that the assumption of taxes by the Philippine Government was in exchange for the greater benefits that the country will derive from the agreement.”