OSG Files Memorandum EDCA is Valid

The Office of the Solicitor General (OSG) filed the governments

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 governments 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 Presidents powers
and result in an international embarrassment for the President, adversely
affecting the countrys 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 governments 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 Senates
silence and non-participation in the petitions, the SolGen asserted, is an
affirmation of the Presidents 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
andpurely 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 EDCAs 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 Presidents decision to enter into the EDCA,
saying that it is within the Presidents 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 EDCAs 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 countrys local government, construction, telecommunications, and
tax laws. Sweeping aside these objections, the SolGen argued that petitioners
cant force application of the countrys 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.