Press Release
November 27, 2014

SENATE TO CONDUCT HEARING ON EDCA

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said she will call a public hearing on the Enhanced Defense Cooperation Agreement (EDCA) on Monday, December 1, to pass upon whether the Senate should concur with the agreement.

The hearing will address the following topics:

  • Does the EDCA need to be concurred in by the Senate;

  • Is it necessary?

  • Is it beneficial?

  • Is it practical?

According to Santiago, Sections 1 and 2 of the Rules of Procedure Governing Inquiries in Aid of Legislation may be used as the basis of the EDCA hearing.

"The rules state that formal inquiries or investigations may extend to any and all matters vested by the Constitution in Congress and/or in the Senate alone and that inquiries may be initiated by the Senate or any of its Committees if the matter is within its competence," the senator said.

The senator further said that the mere fact that a petition against the constitutionality of the EDCA is pending before the Supreme Court does not prevent the Senate from conducting its own public hearing.

"Under the Senate Rules, no proceeding before any government agency can inhibit the Senate from conducting its own proceedings," Santiago said.

Santiago cited Romero v. Estrada, 583 SCRA 396 (2009), where the Supreme Court held that "on-going judicial proceedings do not preclude congressional hearings in aid of legislation."

The senator also clarified that the Senate is not restricted to hold a hearing for purposes only of concurrence. The committee can hold a public hearing which can be justified under the right to public information.

"If the hearing is within the purview of the treaty clause of the Constitution, it is for the purpose of finding out whether the treaty is to be considered valid and effective and the public hearing can come out with the information that the EDCA is subject to Senate concurrence. It does not mean that the Senate foreign relations committee will require the Senate to vote on concurrence," Santiago explained.

Constitutionality of the EDCA

Santiago said the Senate hearing will also tackle the constitutional ban on foreign military bases, troops, or facilities in the country, except under a treaty duly concurred in by the Senate.

"Contrary to the claim that the EDCA does not involve the establishment of military bases, the EDCA gives the US rights of possession, control, and use over areas of Philippine territory described as 'Agreed Locations," she said. "These rights amount to the maintenance of military bases in the Agreed Locations."

She said the EDCA allows the maintenance of military bases in the country, which cannot be done without the approval of the Senate.

On Senate concurrence of the EDCA

Santiago said that under the Constitution, the authority of the Senate to concur on a treaty is the decisive measure to make the EDCA constitutional, if at all, the Senate will express concurrence. If the Senate does not concur, then the treaty does not become a law.

"The Constitution is categorical. It requires Senate concurrence whether the document is called a treaty or any other international agreement," the senator said.

EDCA as implementing the MDT and VFA

The senator clarified that the EDCA cannot be viewed as an implementing agreement of the Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA). "In international law, there is no such thing as an implementing treaty especially in our Constitution. Every treaty has to be on the basis on Constitutional requirement, whether implementing or not," Santiago said.

Santiago added that the concurrence requirement for the EDCA is different from the requirements of the MDT. The EDCA may not fall under the prohibition if it is subject to Senate concurrence.

"The MDT is only for the purpose of making the treaty Philippine law but the concurrence requirement for EDCA is for the purpose of saving the treaty from the prohibition in the Constitution, Article 18, Section 25," the senator said.

EDCA as an executive agreement is an impeachable offense

According to Santiago, there are similar acts connected with the EDCA that may be grounds for impeaching the president. "The president, by agreeing to the EDCA, can be held accountable for impeachable offenses. These are culpable violations of the Constitution and betrayal of public trust, for allowing a foreign government to maintain military bases without Senate concurrence," the senator said.

Solgen not arguing based on law

"The Solgen is not arguing based on law, he is arguing on political nuances," Santiago said.

Hilbay reportedly said that "the Senate's silence is a nuanced affirmation of the powers of the President" to enter into EDCA.

Santiago also took umbrage from the alleged statement made by Solicitor General Florin Hilbay that the fact that no senator joined the petitioners in having the Supreme Court declare the EDCA unconstitutional might be a sign that they agreed to the agreement.

Santiago said there is no law requiring any senator to intervene in any hearing before any tribunal in the country.

"We initially desisted from conducting hearings out of interdepartmental comity with the Supreme Court. We did not signify consent to the EDCA. We merely signified courtesy and respect," Santiago said.

According to the senator, what will transpire in the public hearing may assist the Supreme Court in suggesting some approaches to resolve what the Supreme Court has indicated as its dilemma.

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