EDCA
G.R. No. 212426, January 12, 2016
The petitions question the constitutionality of the Enhanced Defense Cooperation Agreement
(EDCA) between the Republic of the Philippines and the United States of America (U.S.). Petitioners
allege that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction
when they entered into EDCA with the U.S.,claiming that the instrument violated multiple constitutional
provisions.In reply, respondents argue that petitioners lack standing to bring the suit. To support the
legality of their actions, respondents invoke the 1987 Constitution, treaties, and judicial precedents.
**background read for better understanding, pero pwede din wag na lol
BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE,
FOREIGN RELATIONS, AND EDCA
A. The prime Duty of the Senate and the Consolidation of Executive Power in the President
-duty of the Government is to serve and protect the people, must be carried out earnestly and
effectively throughout the whole territory of the Philippines in accordance with the constitutional
provision on national territory, president - guardian of the Philippine archipelago
President is equipped with authority over the Armed Forces of the Philippines (AFP), may call out the
AFP to prevent or suppress instances of lawless violence, invasion or rebellion,14 but not suspend the
privilege of the writ of habeas corpus for a period exceeding 60 days, or place the Philippines or any part
thereof under martial law exceeding that same span
The power and duty to conduct foreign relations
>President - sole organ in the conduct of foreign relations
The relationship between the two major presidential functions and the role of the Senate
Senate has a role in ensuring that treaties or international agreements the President enters into.
(sec 21, art 7)
treaties under the 1973 Constitution - required ratification by a majority of the Batasang
Pambansa, except in instances wherein the President "may enter into international treaties or agreements
as the national welfare and interest may require."
1935 Constitution - which explicitly gave the President the power to enter into treaties only with the
concurrence of two-thirds of all the Members of the Senate.
The 1987 Constitution returned the Senate's power and, with it, the legislative's traditional role in foreign
affairs.23
The responsibility of the President when it comes to treaties and international agreements under the
present Constitution is shared with the Senate. This shared role, petitioners claim, is bypassed by EDCA.
II. HISTORY
1898 Battle of Manila Bay during the Spanish-American War
1899, the Americans had consolidated a military administration in the archipelago, U.S.
manifested the desire to maintain military bases and armed forces in the country.
Hare-Hawes-Cutting Act of 1933, - rejected that law, as it also gave the U.S. the power to
unilaterally designate any part of Philippine territory as a permanent military or naval base of the
U.S. within two years from complete independence
Tydings-McDuffie Act - surrender to the Commonwealth Government of "all military and other
reservations" of the U.S. government in the Philippines, except "naval reservations and refueling
stations
Second World War, passed resolutions authorizing their respective Presidents to negotiate the
matter of retaining military bases in the country after the planned withdrawal of the U.S.
1946 - Treaty of General Relations, U.S. relinquished all control and sovereignty over the
Philippine Islands, except the areas that would be covered by the American military bases in the
country.
Military Bases Agreement (MBA) of 1947,
the Military Assistance Agreement of 1947
Mutual Defense Treaty (MDT) of 1951.
Current legal regime on thepresence of U.S. armed forces in the country
Due to expiration of the 1947 MBA in 1991, there was a negotiation for a possible renewal of their
defense and security relationship. Termed as the Treaty of Friendship, Cooperation and Security, the
countries sought to recast their military ties by providing a new framework for their defense cooperation
and the use of Philippine installations
revived in 1999 when they concluded the first Visiting Forces Agreement (VFA)
VFA has laid down the regulatory mechanism for the treatment of U.S. military and civilian personnel
visiting the country
Balikatan - U.S. military and civilian personnel started arriving in Mindanao to take part in joint military
exercises with their Filipino counterparts., these exercises involved trainings aimed at simulating joint
military maneuvers
The Enhanced Defense Cooperation Agreement
This EA authorizes the U.S. military forces to have access to and conduct activities within certain
"Agreed Locations" in the country. It was not transmitted to the Senate on the executive's understanding
that to do so was no longer necessary.
Two petitions for certiorari were thereafter filed before us assailing the constitutionality of EDCA. They
primarily argue that it should have been in the form of a treaty concurred in by the Senate, not an
executive agreement.
Senators adopted Senate Resolution No. (SR) 105.91 The resolution expresses the "strong sense"92 of the
Senators that for EDCA to become valid and effective, it must first be transmitted to the Senate for
deliberation and concurrence.
Executive Department committed grave abuse of discretion in entering into EDCA in the form of
an executive agreement
CONSTITUTION
Article XVIII Section 25 provides:
After the expiration in 1991 of the Agreement
between the Republic of the Philippines and
the United States of America 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 and, when the
Congress so requires, ratified by a majority of
the votes cast by the people in a national
referendum held for that purpose, and
recognized as a treaty by the other contracting
State.
**said allocation of the Philippine territory
could be considered as a foreign military base,
and the exemption could not be used since it
was not concurred by the senate
Article VIII Sec 1 Par 2 states:
Judicial power includes the
duty of the courts of justice to settle
actual controversies involving rights
which are legally demandable and
enforceable, and to determine whether
or not there has been a grave abuse of
discretion amounting to lack or excess
of jurisdiction on the part of any
branch or instrumentality of the
Government.1
EDCA
Article III, AGREED LOCATIONS
1. With consideration of the
views of the Parties, the Philippines
hereby authorizes and agrees that
United State forces, United States
contractors, and vehicles, vessels,
and aircraft operated by or for
United States forces may conduct the
following activities with respect to
Agreed Locations; training; transit;
support and related activities; refueling
aircraft;
bunkering
of
vessels;
temporary maintenance of vehicle,
vessels and aircraft; temporary
accommodation
of
personnel;
communications; prepositioning of
equipment, supplies, and materiel;
deploying forces and materiel; and
such other activities as the Parties may
agree.
Article XI RESOLUTION OF DISPUTES
The Parties agree to resolve
any dispute arising under this
Agreement
exclusively
through
consultation between the parties.
Disputes and other matters subject to
consultation under this agreement shall
not be referred to any national or
international court, tribunal, or other
similar body, or to any third party for
settlement, unless otherwise agreed by
the parties.2
1 Consti, Art, VIII
2 Enhanced Defense Cooperation Agreement, April 29, 2014
Article VII Section 21 asserts:
EDCA considered as an Executive Agreement,
without the need of concurrence of Congress
No treaty or international
agreement shall be valid and effective
unless concurred in by at least twothirds of all the Members of the
Senate.3
ISSUE
Whether the essential requisites for judicial review are present
RULING
The fundamental law is explicit in prohibiting the presence of foreign military forces in the country,
except under a treaty concurred in by the Senate.
**judicial review specially refers to both the authority and the duty of this Court to determine whether a
branch or an instrumentality of government has acted beyond the scope of the latter's constitutional
powers.
The separation of powers is a fundamental principle, Each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere.
[system of checks and balances]
"pillars" of the limitations on the power of judicial review4
It may invoke judicial review, only when the following four stringent requirements are satisfied: (a)
actual case or controversy; (b) locus standi; (c) raised at the earliest opportunity; and (d) the issue of
constitutionality is the lis mota
Presence of an actual case or controversy
- no actual case or controversy, not been deprived of the opportunity to invoke the privileges of the
institution they are representing
- matter before us involves an actual case or controversy that is already ripe for adjudication. exchange of
diplomatic notes, the Executive Department effectively performed the last act required under Article
XII(l) of EDCA before the agreement entered into force. Section 25, Article XVIII of the Constitution, is
clear that the presence of foreign military forces in the country shall only be allowed by virtue of a treaty
concurred in by the Senate
3 Consti. Art VII
4 1.That there be absolute necessity of deciding a case2.That rules of constitutional law shall be formulated only as required by the facts of the case
3.
4.
5.
6.
That judgment may not be sustained on some other ground
That there be actual injury sustained by the party by reason of the operation of the statute
That the parties are not in estoppel
That the Court upholds the presumption of constitutionality (Emphases supplied)
No legal standing, but they raise issues involving matters of transcendental importance.
Petitioners suing as citizens may dodge the requirement of having to establish a direct and
personal interest if they show that the act affects a public right.
Xx citizens suit - they fail to make any specific assertion of a particular public right that would be
violated by the enforcement of EDCA.
Xx taxpayers suit - government had not yet appropriated or actually disbursed public funds for the
purpose of implementing the agreement, still, no legal satnding as concerned taxpaers
Xx legislators' suit - those Members of Congress who are challenging the official act have standing only
to the extent that the alleged violation impinges on their right to participate in the exercise of the powers
of the institution of which they are members
Transcendental importance
Proper exercise of the Executive Department's power to enter into international agreements in relation to
that of the Senate to concur in those agreements. They also assert that EDCA would cause grave injustice,
as well as irreparable violation of the Constitution and of the Filipino people's rights.
Liberal stance on legal standing: considers a number of factors: (1) the character of the funds or other
assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any
other party that has a more direct and specific interest in raising the present questions
The transcendental importance of the issues presented here is rooted in the Constitution itself. Section
25, Article XVIII thereof, cannot be any clearer: there is a much stricter mechanism required before
foreign military troops, facilities, or bases may be allowed in the country. The DFA has already confirmed
to the U.S. Embassy that "all internal requirements of the Philippines x x x have already been complied
with."142 It behooves the Court in this instance to take a liberal stance towards the rule on standing and to
determine forthwith whether there was grave abuse of discretion on the part of the Executive Department.
ISSUES
Whether the President may enter into an executive agreement on foreign military bases,
troops, or facilities
Whether the provisions under EDCA are consistent with the Constitution, as well as with
existing laws and treaties
The role of the President as the executor of the law includes the duty to defend the State, for which
purpose he may use that power in the conduct of foreign relations, inherent in executive power and is
intimately related to the other executive function
* mandate is self-executory by virtue of its being inherently executive in nature 5
[i]f the rules are issued by the President in implementation or execution of self-executory constitutional powers vested in the President, the rulemaking power of the President is not a delegated legislative power. The most important self-executory constitutional power of the President is the
President must "take necessary and proper steps to carry into execution the law."Justice George
Malcolm
In light of this constitutional duty, it is the President's prerogative to do whatever is legal and necessary
for Philippine defense interests.
The President may enter into an executive agreement on foreign military bases, troops, or
facilities, if (a) it is not the instrument that allows the presence of foreign military bases, troops,
or facilities; or (b) it merely aims to implement an existing law or treaty.
The President had the choice to enter into EDCA by way of a executive agreement or a treaty. No
court can tell the President to desist from choosing an executive agreement over a treaty to
embody an international agreement, unless the case falls squarely within Article VIII, Section 25.
The term "executive agreement" is "a term wandering alone in the Constitution, bereft of provenance and
an unidentified constitutional mystery." It must not go beyond the parameters, limitations, and
standards set by the law and/or treaty that the former purports to implement; and must not
unduly expand the international obligation expressly mentioned or necessarily implied in the law or
treaty.
The executive agreement must be consistent with the Constitution, as well as with existing laws and
treaties.
In light of the President's choice to enter into EDCA in the form of an executive agreement,
respondents carry the burden of proving that it is a mere implementation of existing laws and
treaties concurred in by the Senate. EDCA must thus be carefully dissected to ascertain if it
remains within the legal parameters of a valid executive agreement. EDCA is consistent with the
content, purpose, and framework of the MDT and the VFA. OSG emphasizes that EDCA can be in the
form of an executive agreement, since it merely involves "adjustments in detail" in the
implementation of the MDT and the VFA.
There are existing treaties between the Philippines and the U.S. that have already been concurred in by
the Philippine Senate and have thereby met the requirements of the Constitution under Section 25.
Because of the status of these prior agreements, respondent emphasizes that EDCA need not be
transmitted to the Senate.
The construction technique of verba legis is not inapplicable just because a provision has a specific
historical context. I The phrase being construed is "shall not be allowed in the Philippines" and not the
preceding one referring to "the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or
facilities.". Without reference to these factors, a reader would not understand those terms. However, for
the phrase "shall not be allowed in the Philippines," there is no need for such reference. The law is clear.
No less than the Senate understood this when it ratified the VFA.
President's constitutional duty and mandate to "ensure that the laws be faithfully executed." The rule is that the President can execute the law without
any delegation of power from the legislature.
cralawlawlibrary
The President may generally enter into executive agreements subject to limitations defined by the
Constitution and may be in furtherance of a treaty already concurred in by the Senate.
The power of the President to enter into binding executive agreements without Senate concurrence is
already well-established in this jurisdiction That power has been alluded to in our present and past
Constitutions, in various statutes, in Supreme Court decisions, and during the deliberations of the
Constitutional Commission.1
Inherent power of the President to enter into agreements with other states, including the prerogative to
conclude binding executive agreements that do not require further Senate concurrence 6
This distinctive feature was recognized as early as in Eastern Sea
Trading (1961), viz:chanRoblesvirtualLawlibrary
Treaties are formal documents which require ratification with the approval of two-thirds of
the Senate. Executive agreements become binding through executive action without the need of
a vote
by
the
Senate or
by
Congress.
[T]he right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. From the earliest days of our history we
have entered into executive agreements covering such subjects as commercial and consular relations,
most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned by
our courts. (Emphases Supplied)cralawlawlibrary
**discussion of Constitutional Commission members yung two kinds ng exec agreement: one is purely
proceeding from an executive act which affects external relations independent of the legislative and
the other is an executive act in pursuance of legislative authorization. The first kind might take the
form of just conventions or exchanges of notes or protocol while the other, which would be pursuant
to the legislative authorization, may be in the nature of commercial agreements.
Although the Chief Executive wields the exclusive authority to conduct our foreign relations, this power
must still be exercised within the context and the parameters set by the Constitution
The President had the choice to enter into EDCA by way of an executive agreement or a
treaty.
legally binding international agreements were being entered into by countries in forms other than a treaty.
At the same time, it is clear that they were also keen to preserve the concept of "executive agreements"
and the right of the President to enter into such agreements.
- no hard and fast rules on the propriety of entering, on a given subject, into a treaty or an executive
agreement as an instrument of international relations. The primary consideration in the choice of the
form of agreement is the parties' intent and desire to craft an international agreement in the form
they so wish to further their respective interests.
Section 5(2)(a), Article VIII,
All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
- Constitution does not classify any subject, like that involving political issues, to be in the form of,
and ratified as, a treaty
This Court stated in Lim v. Executive Secretary: Thus, EDCA can be in the form of an executive
agreement, since it merely involves "adjustments in detail" in the implementation of the
MDT and the VFA. It points out that there are existing treaties between the Philippines and the
U.S. that have already been concurred in by the Philippine Senate and have thereby met the
requirements of the Constitution under Section 25. Because of the status of these prior
agreements, respondent emphasizes that EDCA need not be transmitted to the Senate.
Therefore, the President may generally enter into executive agreements subject to limitations
defined by the Constitution and may be in furtherance of a treaty already concurred in by the Senate.
The duty to faithfully execute the laws of the land is inherent in executive power and is intimately
related to the other executive functions. These functions include the faithful execution of the law
in autonomous regions; the right to prosecute crimes; the implementation of transportation projects;
the duty to ensure compliance with treaties, executive agreements and executive orders; the
authority to deport undesirable aliens; the conferment of national awards under the President's
jurisdiction; and the overall administration and control of the executive department. These obligations
are as broad as they sound, for a President cannot function with crippled hands, but must be capable
of securing the rule of law.
EDCA VS MBA VS VFA
EDCA does not allow the presence of U.S.-owned or -controlled military facilities and bases in the
Philippines
EDCA is a far cry from a basing agreement as was understood by the people at the time that the
1987 Constitution was adopted.
Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases" and
"facilities" is required before EDCA can be deemed to have passed judicial scrutiny.
The latest agreement is EDCA, which proposes a novel concept termed "Agreed Locations." Not
military bases
Section 25 does not define what is meant by a "foreign military facility or base." While it specifically
alludes to U.S. military facilities and bases that existed during the framing of the Constitution, the
provision was clearly meant to apply to those bases existing at the time and to any future facility or base.
**con comm statements
Constitutional Commission eventually agreed to allow foreign military bases, troops, or facilities,
subject to the provisions of Section 25. It is thus important to read its discussions carefully. From these
discussions, we can deduce three legal standards that were articulated by the Constitutional Commission
Members. These are characteristics of any agreement that the country, and by extension this Court, must
ensure are observed. We can thereby determine whether a military base or facility in the Philippines,
which houses or is accessed by foreign military troops, is foreign or remains a Philippine military base or
facility. The legal standards we find applicable are: independence from foreign control, sovereignty
and applicable law, and national security and territorial integrity.
The Philippines will need friends. Who they are, and what form the friendships will take, are for
the President to decide. The only restriction is what the Constitution itself expressly prohibits. It appears
that this overarching concern for balancing constitutional requirements against the dictates of necessity
was what led to EDCA.
As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with
existing laws and treaties that it purports to implement.
OTHER OPINIONS (ayusin ko to lahat swear haha eto yung shortcut na nakita ko sa net)
BRION DISSENT
Issue 1: W/N the SC may exercise its power of judicial review over the case
(Please note this is a digest of Brions Dissent Opinion)
Yes. The petitioners satisfied the requirement of legal standing in asserting that a public right has been
violated through the commission of an act with grave abuse of discretion. The court may exercise its
power of judicial review over the act of the Executive Department in not submitting the EDCA agreement
for Senate concurrence not because of the transcendental importance of the issue, but because the
petitioners satisfy the requirements in invoking the courts expanded jurisdiction.
Issue 2: W/N the issue on the invalidity of EDCA for lacking Senate concurrence falls under the
political question doctrine
(Please note this is a digest of Brions Dissent Opinion)
No. The constitutional status of the EDCA as an executive agreement in light of the mandate of Article
XVIII, Section 25 of the Constitution is not a political question outside the judiciarys competence and
authority to resolve. This is because there is a standard set by the Constitution in delineating when an
international agreement should be a treaty subject to Senate concurrence an issue which is within the
Courts authority to settle in their role as the guardians of the Constitution.
Issue 3: W/N the EDCA is a valid agreement entered into by the President
No. The EDCA, as a mere executive agreement entered by the President with the US, is constitutionally
deficient. The EDCA should be in the form of a treaty as it brings back to the Philippines the modern
equivalent of the foreign military bases whose term expired in 1991 and which Art XVIII, Sec 25 of the
Constitution directly addresses; foreign troops under arrangements outside of the contemplation of the
visiting forces that the 1998 VFA allows; and military facilities that, under modern military strategy,
likewise can be brought in only through a treaty.
De Castro Dissent
Issue 1: W/N EDCA is a valid agreement entered into by the President
No. EDCA is not a valid executive agreement entered into by the President because it falls under those
treaties and international agreements which need the concurrence of the Philippine Senate.
Article XVIII, Sec 25 of the 1987 Constitution is a special provision that prohibits the entry of foreign
military bases, troops or facilities in the Philippines. As an exception, such would be allowed only if: first,
the stay of foreign military bases, troops, or facilities is allowed by a treaty; second, such treaty is with
the concurrence of the Senate, and when Congress so requires, such treaty should be ratified by majority
of the votes cast by the Filipino people in a national referendum held for the purpose; and third, such
treaty is recognized as a treaty by the other contracting party.
Whether the stay of the foreign troops in the country is permanent or temporary is immaterial because the
Constitution does not distinguish. In the case of EDCA, it clearly involves the entry of foreign military
bases, troops or facilities in the country. Hence, the absence of Senate concurrence to the agreement
makes it an invalid treaty.
Issue 2: W/N the EDCA is merely an implementation of the VFA and the MDT
No. The EDCA is entirely a new treaty, separate and distinct from the VFA and the MDT.
First, while the VFA allows only the presence of US military troops, the EDCA on the other hand
contemplates the presence of not just the troops but also military bases and facilities in the so-called
Agreed Locations.
Second, the MDT covers defensive measures to counter an armed attack against either of the parties
territories or armed forces but there is nothing in the MDT that specifically authorizes the presence,
whether temporary or permanent, of a partys bases, troops, or facilities in the other partys territory even
during peace time or in mere anticipation of an armed attack. The presence of foreign military bases,
troops, or facilities provided under the EDCA cannot be traced to the MDT. Moreover, the general
provisions of the MDT cannot prevail over the categorical and specific provision of Section 25, Article
XVIII of the Constitution.
Hence, the EDCA as an agreement creating new rights and obligations must satisfy the requirements
under Sec 25, Art XIII of the Constitution.
