Justices to EDCA critics: How to defend West PH Sea?

Justices to EDCA critics: How to defend West PH Sea?
Acting Solicitor General Florin Hilbay feels victorious after the first day of Supreme Court oral arguments on the PH-US Enhanced Defense Cooperation Agreement

MANILA, Philippines – Listening to the way she grilled for 45 minutes and demolished the arguments of a counsel of the petitioners against the PH-US Enhanced Defense Cooperation Agreement (EDCA) on Tuesday, November 18, it appears Chief Justice Maria Lourdes Sereno is the biggest defender of the pact.

“It seems that she (Sereno) is in favor of either relegating the issue to the Senate or dismissing the petition. It’s just my speculation,” said former University of the Philippines College of Law Dean Pacifico Agabin, a petitioner calling for the nullification of EDCA, after the first day of Supreme Court oral arguments on EDCA on Tuesday. 

First, Sereno offered arguments to dismiss petitioners’ claims that EDCA requires Senate ratification. Next, she dismissed as “speculative” declarations made by petitioners that EDCA violates territorial integrity and sovereignty and that it is meant only to advance US interests and not the Philippines’.

 

And when anti-EDCA counsel Rachel Pastores argued that EDCA poses threats to national sovereignty and integrity, Sereno started talking about the incursions in the West Philippine Sea as the “single biggest threat” to the country’s security. 

The Chief Justice wrapped up to say that expanded US military presence in the country – along with the prepositioning of their ships and other defense assets – may be needed to defend the West Philippine Sea (South China Sea). (READ: SC orals on EDCA: China threat looms over charter issues

“In a situation where the West Philippine Sea becomes a theater of war, is that not, in fact, in the concept of self defense? If the prepositioning has been in consultation with the Philippines and we have to wait for how this mutual help is going to be really actualized. What those prepositioned materials can do, is to try to have inhibitory effects within a certain area. I believe that Palawan has already been announced  as one of the envisioned agreed locations. Palawan is nearest Reed Bank and all the areas that we thought we can exploit economically for the benefit of the people,” Sereno said.

When Pastores expressed doubts that EDCA will address security threats in the West Philippine Sea because it’s a “one-sided agreement” meant only to advance US interests, Sereno asked her what’s the alternative for government. “We should, your honor, improve our own defense capacity and not be dependent on the US,” said Pastores.

Sereno replied: “Yes, that is a desire. Even AFP (Armed Forces of the Philippines) understands that they do no want to be dependent on foreign aid. But they are admiting here in EDCA that they have short-term capability ssues. What do we do with short-term capabilies issues? We ignore them?”

Signed in April 2014, EDCA allows American troops 2 new activities in the Philippines: The construction of facilities and the prepositioning of defense assets in agreed locations that the US military will have operational control over. The rotational presence of US troops is already covered by the Visiting Forces Agreement, which was ratified by the Senate in 1999.

In May, EDCA critics asked the High Court to declare the agreement unconstitutional, saying it’s contrary to national interest and should have been scrutinized by the Senate first. 

‘Give them a chance’

Sereno however said it may be “premature” to rule on the constitutionality of EDCA  because the deal has yet to be implemented and the implementing arrangements have yet to be finalized. The Mutual Defense Board-Security Engagement Board has yet to identify the Agreed Locations, the types of facilities the US may build, and the types of assets they can bring in.

“Should we not just give them a chance first? When we see implementing agreements and acts that really derogate Philippine sovereignty and then that is when we step in,” she added. Pastores argued that the provisions in the EDCA giving powers and authorities to US forces is already a threat to territorial integrity. 

Acting Solicitor General Florin Hilbay felt victorious even before he could present the government’s arguments next week, November 25. Hilbay said the oral arguments on Tuesday were able to establish that “the President has the power to defend the nation.”

Another anti-EDCA petitioner and counsel, Harry Roque, brushed off Sereno’s line of questioning, however. Roque said it’s possible that the Chief Justice was only playing “devil’s advocate.”

Spratlys, US help

Supreme Court Senior Associate Justice Antonio Carpio was the first to bring the oral arguments on EDCA to the practical situation in the West Philippine Sea. Citing an old letter of a US envoy, Carpio established that the West Philippine Sea is covered by the Mutual Defense Treaty.

Carpio: Let us go specifically to Spratlys. We have a warship there, Sierra Madre. It doesn’t run anymore but in the roster of active Philippine warships, it is still part of our warships. Supposing now that China has been running around guarding that place without touching it because they are worried that if they attack that warship and evict our Marines there it could be an armed attack on a public vessel of the Philippines and that will trigger the MDT’s operation.You think that if China evicts those Marines there, we can invoke the MDT?

Roque: We can invoke but there’s no guarantee that the US will, in fact, undertake its operation.

Carpio: Yes, it’s a different thing. We can invoke but we do not know if the Americans will actually do it. 

Carpio noted how the US declared during the tense standoff in Scarborough Shoal that it would not take sides inspite of early maps showing that the shoal has always been a part of Philippine territory and were actually used by the US military as target range from the 60s to the 80s.

Roque also noted that China is the largest foreign holder of US debt, that the 2 countries are each other’s biggest trading partners, and that they also have military cooperation agreements. 

Considering the realities, Carpio also asked Roque what he would suggest the President would do to defend the West Philippine Sea. Carpio asked: “Knowing that China has moved its borders and been reclaiming islands and reefs and everything within the Philippines is within their range. Knowing that Filipino fishermen cannot fish in Scarborough. You are now the adviser of the President, what would you advice him?”

Carpio gave Roque 4 options:

a) Increase defense spending

b) Enter into alliances with neighboring countries such as Japan

c) Strengthen partnership with sole treaty partner, the US, under the MDT

d) Sue China under UNCLOS

Roque replied: “Except strengthening our partnership with the US, your honor…. We are considered as factotum of US. What is crucial, I believe, to a peaceful resolution of this conflict is to explain to China that we have become an independent state from the US.”

This is where Carpio noted that China evicted Vietnam, which is fiercely independent, from the Paracels and the Johnsoon Reef. “To China, it doesn’t matter,” he said. (READ: What’s at stake in our case vs China)

EDCA doesn’t need ratification?

Two petitions were filed before the High Court to demand the nullification of EDCA on 2 grounds: procedural and substantive. Procedurally, petitioners argued that EDCA cannot be a simple executive agreement to be signed by the defense secretary. It requires Senate ratification because it is “de facto” basing, which is only allowed in the 1987 Constitution through treaties, they said.

Pastores argued that EDCA is tantamount to basing. Some provisions in the EDCA, she said, recalls provisions in the already defunct PH-US Military Bases Agreement. “The gamut of rights and authorities granted to US forces with respect to Agreed Locations is practically surrendering to the US forces the sovereignty of the Philippines with respect to the agreed locations,” Pastores explained.

Sereno said it is a non-issue. While Pastores recalled ugly episodes in Philippine-US relationship, the Chief Justice stuck to the wordings of EDCA and explained that the High Court is not a trier of facts. Based on the agreement, she said it is clear that the facilities to be constructed by the US military belong to the Philippines. 

Sereno: All buildings remain the property of the Philippines. The ‘Agreed Location’ means the location plus the facilities are owned by the Philippines. The ownership dictates that characterization of whether it is foreign or not.

Pastores: Even though, your honor, the EDCA provides that ownership and title to these agreed locations – plus the structures – shall remain with the Philippines, your honor, the Philippines cannot exercise the rights of an owner.

Sereno: The allegation that you basically have no title to whatever is going to be built is not correct. The situation under EDCA is that of a usufructuary, is that not correct? That is similar to the usufructuary situations that we allow in many instances.

Pastores: I don’t think so, your honor. The Agreed Locations are given to US forces for free.

Sereno: The use of it is given for free. 

Associate Justice Marvic Leonen also suggested that EDCA concerns matters of foreign policy and national security and are thus within the powers of the President. He said: “If executive power includes these discretions as a matter of wisdom, don’t you think that that the Court should apply an attitude of deferential treatment on the decisions of the President? In other words, the presumption of the constitutionality holds.”

As the Chief Justice, Sereno was the last to grill the counsel of the petitioners. Before her, other justices raised the possibility of transmitting EDCA to the Senate to remedy the procedural infirmity. 

The idea of bringing it to the Senate was opposed by the Solicitor General because it will supposedly diminish the powers of the President. 

No to speculation

Sereno also dismissed as “speculation” many of the substantive issues that the petitioners raised against EDCA.

Petitioners question why the US is not paying rent, why the Philippines is surrendering sovereignty to the Agreed Locations by allowing the US troops operational control over the areas, why Philippine’s designated authorities are given limited access to the Agreed Locations, and why Congress is bypassed to give the US military its own radio spectrum, among others.

For each supposedly lopsided provision, Sereno read the provisions of EDCA and took them all at face value. “From my textual review, I fail to see really what part of the text stands out as derogation, short of seeing the implementing arrangements themselves,” Sereno said.

Sereno: You are presenting to the Court a situation where we can rule that the EDCA is unconstitutional if we speculate. First, on the extent of the rights of military forces. We are going to speculate that the right of Philippine authorites for access is a false right. Even on the construction aspect, the consultation necesary is only a false consultation. In other words, if we are going to assume falsity on the part of Philippine government authorities, then we will rule that EDCA is, in fact, unconstitutional. But do we have the legal authority to make that assumption?

Pastores: We ask the court to get the deeper meaning of the activities and authorities that the US forces are authorized or allowed to perform within the Agreed Locations. The principal provisions, necessary authorization with respect to agreed locations, were already given in the text of EDCA. What will be discussed are subdetails regarding, for instance, implementing arrangements, say questions about funidng.

Sereno: We have a problem here. We have agreed that unless the facts, we are not a court that tries facts, are really presented in appropriate forum which is a trial court, we cannot presume the factual situation. The facts are not yet established in a court before us, is that not correct?

Pastores: In many decisions of the honorable court, your honor. That is the ruling.

Sereno also seemed satisfied with the provisions on access, an issue that caused impasse during the talks because the US sought to limit Philippine access to the facilities. “There is no restriction on access at all here. It only requires that any such access be consistent with SOP (Standard Operating Procedure). Even US military officials cannot just go to any installation without clearing it with security staff,” she said. – Rappler.com

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