SC justices keen to pass Edca decision to Senate

“The Filipinos are treated as security guards only, in these agreed locations, the Americans exercise all aspect of ownership, and that while the treaty is supposed to last for only 10 years, it can be renewed indefinitely.” – Dean Pacifico Agabin


MANILA — Supreme Court (SC) justices questioned the petitioners against the Philippines-United States Enhanced Defense Cooperation Agreement (Edca) on sovereignty issues, the conflict in the West Philippine Sea, and the Mutual Defense Treaty at the Nov. 18 oral arguments.

Some justices expressed that the petitioners should have brought their case instead to the Senate, which, being a political body, would be more capable of looking into questions on security and defense.

Two sets of petitioners asked the high court to declare Edca unconstitutional. One was filed by a group led by former Senators Rene Saguisag and Wigberto Tañada Sr. and with the Kilusang Mayo Uno as petitioners in intervention. Another petition was filed by Bagong Alyansang Makabayan (Bayan) with Saguisag and KMU as petitioners in intervention.

Saguisag gave the opening remarks while the arguments were presented by petitioners’ counsels, former Dean Pacifico Agabin, international law expert Harry Roque, Rachel Pastores of the Public Interest Law Center (PILC) and women’s rights defender and expert Evalyn Ursua.

Members of progressive groups stage a protest outside the Supreme Court, Nov. 18. (Photo by Jola Diones-Mamangun / Kodao Productions)
Members of progressive groups stage a protest outside the Supreme Court, Nov. 18. (Photo by Jola Diones-Mamangun / Kodao Productions)

The petitioners argued that Edca is a new basing agreement, separate from the 1951 Mutual Defense Treaty and the Visiting Forces Agreement, and violates the constitution. They also argued that President Aquino, “commited grave abuse of discretion” in entering into Edca.

Another petition in intervention was filed by the family of slain transgender Jennifer Laude on Nov. 17, but was denied by the court. The Laude family was among the observers at the session hall.

Before the session started, activists held a picket along Padre Faura street in front of the SC gate in support of the petition to declare the Edca unconstitutional.


Justice Mario Victor Leonen, in questioning lawyer Rachel Pastores, said the petitioners were “arguing fairness and considerations of national security in the wrong forum,” and that their arguments would be better raised at the Senate.

Leonen said that the “except” clause in section 25, Article 18 of the 1987 Constitution which allows foreign troops in the country only under a treaty referred to the relations of the Philippines with the US, with which a bases treaty already expired.

“The senators are your representatives, you can sit down with them, you can tell them your concerns, about the Laude case, you can tell them about nuclear weapons, but you cannot do that with the Supreme Court,” Leonen said, insisting that the justices are not politicians.

Agabin, who was the first to be told by Leonen about the “mitigated solution” of passing the case to the Senate, said it would be “a halfway solution to the problem, that will be appreciated, but precisely that will not solve the problem, because then the treaty can still be challenged on substantive grounds.”

Leonen said that having the Senate ratify Edca would not only comply with the procedural requirements which the petitioners were raising, but will also give the political body a chance to “take into political consideration all the conditions that the president saw in terms of entering into this treaty.”

The Senate can also see if there is a need for a renegotiation of the agreement, Leonen said.

Justices Bienvenido Reyes and Jose Perez echoed Leonen’s statements about bringing the case to the senate.

Reyes said that the high court might be “speaking prematurely” if it declares Edca as unconstitutional, and “we will be judged by history as unpatriotic and traitors.”

Justice Perez said that he agrees with Leonen “that this should be given to the Senate for the Senate to do its work.”

“I don’t have the capability, I don’t have the knowledge, I don’t have the expertise to determine whether there’s really a giving up of national sovereignty,” he said.

The petitioners and counsels before the presentation of Edca oral arguments at the Supreme Court. (L-R) Sitting in black robes, lawyers Pacifico Agabin, Harry Roque, Rachel Pastores, Evalyn Ursua. (Photo by Dee Ayroso /
The petitioners and counsels before the presentation of Edca oral arguments at the Supreme Court. (L-R) Sitting in black robes, lawyers Pacifico Agabin, Harry Roque, Rachel Pastores, Evalyn Ursua. (Photo by Dee Ayroso /

China threat

Justice Carpio questioned Harry Roque on the threat of China and that if the Philippines can invoke the 1951 MDT. The SC justice presented a slide of the map of island territories in the West Philippine Sea and China’s claims on these, including the Parcels islands formerly under by Vietnam. Roque tried to argue that under the Vienna Convention, the US cannot attack China but Carpio said that that would fall under “collective self-defense” which the the MDT was meant for, and is allowed by the United Nations charter.

Chief Justice Maria Lourdes Sereno also highlighted the “threat” in the West Philippine Sea, and the Armed Forces of the Philippines’ expressed need of assistance.

“I see our islands in the West Philippine Sea being overtaken, that is what I see, the violation of our economic sovereignty,” she told Pastores. I don’t see this(Edca) — as it has not yet been implemented — incurring into our sovereignty.”

Sereno said that the “prepositioning” of US defense personnel and materiel “is to try to have inhibitory effects in certain area, and Palawan has been announced as one of the agreed locations.”

Sereno also grilled Pastores on the petition’s claim that Edca will not help in filling the “short-term capability gaps and long-term modernization” of the Armed Forces of the Philippines (AFP). She asked Pastores if it is “a grave abuse of discretion” for the AFP to ask for help in modernization.

Pastores however said that the AFP has been made dependent on the US, and had remained so even years after the 1947 Military Bases Agreement. “And there is nothing here in the Edca that would say that the US will really use these to protect the Philippines,” Pastores said.

Pastores said that the Edca “violates the sovereignty and territorial integrity of the country” considering granting of the rights and authorities to the US forces in the conduct of activities in the “agreed locations.”

“It is practically surrendering to the US forces the sovereignty of the Philippines with respect to these agreed locations,” Pastores said.

“The activities does not talk about rendition, the activities does not talk about waterboarding, so it does not talk about anything illegal here,” Sereno said.

“From a textual review, I fail to see really what part of the text stands out as derogation,” Sereno said.

“You are presenting to the court a situation where we can rule that 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 the Philippine authorities for access is actually a false. If we are going to rule even on the construction aspect, the consultation necessary is only a false consultation,” said the chief justice.

Sereno said that the basic doctrine in treaties and contract interpretation is “good faith” specially when it involves government officials. Going through the Edca provisions, Sereno said that the Philippines keeps ownership of the “agreed locations” and whatever construction and activities of the US troops will be discussed in “consultations” with the Philippine government.

“Isn’t it even better for the court to allow this Edca to take its shape, and when there is violation of any Philippine law, bring the matter to the appropriate forum?” Sereno said.

Pastores answered that the Filipino people already have a “rich experience” in its relationship with the US, referring to abuses during the time of the bases. “We do not have to wait for cases,” she said. “The very reason that the senate voted to end the term of the military bases was because of a hundred years of experience with the US, specially when we were under its occupation.”

“All of the things that the petitioners are saying are culled from past experiences. So are we now going to immediately say that because of the past, we cannot anymore enter into new agreements simply because it has not been a very happy one for us?” said Sereno.

Pastores tried to bring up the Laude killing as a “test for the AFP to prove that it sides with the Filipino people. Sereno however, stopped her, saying that there is a “distinct possibility” that the case will also be brought to the high court.

Dean Agabin, when questioned by Justice Mariano del Castillo said that the “agreed locations” will not be decided by the Philippine president or the Congress, but only by a joint panel of representatives from the Department of Defense and the US military.

He said the Edca “impairs the sovereignty of the republic,” because “the Filipinos are treated as security guards only, in these agreed locations, the Americans exercise all aspect of ownership, and that while the treaty is supposed to last for only 10 years, it can be renewed indefinitely.”

“The Philippines has not really stood up to insist on the sovereign rights of the country and in fact, in the past when the Philippines insisted on, for instance, the issue of criminal jurisdiction, the US panel has always insisted that it should have criminal jurisdiction,” Agabin said.

Agabin cited other countries such as Iraq which refused to give criminal jurisdiction to the US and had initially rejected to have indefinite US military presence.

Forward or backward?

Justice Teresita Leonardo-de Castro told the petitioners that they should discuss in their memoranda, or the additional documents to be submitted to the court after the oral arguments, a comparison between the 1947 Military Bases Agreement and Edca.

“Have we improved our situation since 1947, or are we now in a worse position than before? If we are, is there any justification for it?” she said. “Is it justified for us now to move backwards to 1947 when we allowed only two facilities within Philippine territory, where now we are agreeing to indefinite number for locations for US facilities? What does that mean in so far as our national integrity and sovereignty is concerned?”

None of the justices questioned Ursua.


On a technical matter, Leonen asked Agabin for clarification about the standing of three petitioners – Bayan’s Carol Pagaduan Araullo, anti-bases expert Dr. Roland Simbulan and former Bayan Muna Rep. Teddy Casiño — who were identified in the document not as taxpayers, but as “activists.”

Agabin said that they would appreciate it if the court accepts it as a criterion for a petitioner’s standing.

“Because it is the duty of every citizen to take part in the democratic decision-making process, and the activists should at least be credited in their interest in public policy issues. Otherwise, there would be no intelligent discussion and debate on policy issues without the role of activists here in the Philippine context,” Agabin said.

Leonen said he agrees with Agabin in the case of the three mentioned, knowing their “personal history and their courageous stand on various issues.”

During the picket outside the SC gate, leaders of different sectoral groups called for the abrogation of Edca.

Sol Villas of Migrante International said that President Aquino is a “boaster,” because under Edca, US troops are given tax-free entry, free access and use to country, while ordinary citizens like OFWs are required to shoulder various fees, such as the newest terminal fee at the Manila airports.

A member of the ManiLAKBAYAN from Mindanao recalled the Bud Dajo massacre during the Fil-American War in 1906 where 1,000 people, mostly women and children were killed by American colonial troops.

Charlotte Velasco, chairwoman of the League of Filipino Students, enjoined other students to emulate the youth who participated in the anti-bases struggle. “Even though we were not yet born at the time of the US military bases, we are now experiencing the same situation now under Edca.” (

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