Santiago sees SC declaring EDCA unconstitutional

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Thursday, May 8, 2014

SENATOR Miriam Defensor Santiago said that it is "highly likely" that the Supreme Court will declare the United States-Philippines Enhanced Defense Cooperation Agreement (EDCA) unconstitutional, on the basis of petitions that militant groups intend to file.

"An agreement signed by a Defense Secretary and a US ambassador should not be the new normal. It should be declared abnormal, because of the particular importance of the EDCA in the context of our Constitution," Santiago, the Senate foreign relations committee chairperson, said.

She said that under international law, the personal participation of the head of state is necessary for so-called "treaties of particular importance."


She said because EDCA was not signed by heads of state, the representatives who signed it should establish their authority to conclude the treaty by the production of a formal document known as "Full Powers."

"Did Defense Secretary Voltaire Gazmin and US Ambassador Philip Goldberg present their Full Powers?" she asked.

The senator said that while a head of state enjoys an inherent capacity to represent and act for the state, this capacity can be shared only with the head of government and the foreign minister.

Santiago earlier voiced deep concern over at least three constitutional provisions which require Senate concurrence to a treaty.

She cited the 1969 Vienna Convention on the Law of Treaties, Art. 46.
Art. 46 provides that if a state's consent to be bound by a treaty has been expressed in violation of its constitution, the state may invoke that violation as a ground for invaliding its consent, if the violation was manifest and concerned a rule of internal law of fundamental importance.

Santiago listed the three constitutional provisions that militate against the EDCA, as follows:

First, the provision that "No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate." (Constitution, Art. 7, Sec. 21)

Second, the provision that: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of American concerning Military Bases, foreign military bases, troops, or facilities, shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate." (Constitution, Art. 18, Sec. 25)
Third, the provision that: "The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory." (Constitution, Art. 2, Sec. 8)

Recently, the Senate plenary session on first reading assigned the topic of the EDCA to the defense committee as the primary committee; and to the foreign relations committee, as the secondary committee.

"However, instead of attending the joint hearings of the two committees, I have decided to hold my own separate committee hearing. Under the Senate Rules of Procedure Governing Inquiries in Aid of Legislation, my committee is allowed to initiate an investigation by itself, as long as the subject matter – which is an international agreement – is within the committee's competence," Santiago said. (Camille P. Balagtas/Sunnex)

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