Second complaint against EDCA filed

Posted on May 28, 2014

A GROUP of left-wing Philippine lawmakers yesterday petitioned the Supreme Court (SC) to immediately halt a new defense pact with the United States, saying it was barred by the Constitution.

The petition by members of the House of Representatives was the second legal challenge this week to the pact, and is bound to draw attention to President Benigno S. C. Aquino III’s battles with the courts.

The courts have blocked many of the government’s reforms since Aquino came to power in 2010, including a landmark law creating a truth commission to examine the wrongdoings of past administrations.

Manila and Washington last month signed a new Enhanced Defense Cooperation Agreement (EDCA) to allow US forces wider access to local bases and construct facilities to store logistics for maritime security and disaster operations.

Party-list Representatives Neri J. Colmenares (Bayan Muna), Antonio L. Tinio (ACT Teachers), Terry L. Ridon (Kabataan) and Luzviminda C. Ilagan (Gabriela), and street activists led by Renato Reyes, Jr. of Bagong Alyansang Makabayan (Bayan) asked the SC for a temporary restraining order (TRO) to prevent the implementation of the pact.

“The Enhanced Defense Cooperation Agreement is a basing agreement that is not allowed under the 1987 Constitution, except under stringent conditions,” the lawmakers said in their petition yesterday.

“EDCA is so grossly lopsided in favor of the US that the secrecy surrounding its negotiations can only be viewed as an attempt to thwart any criticism or even public debate regarding its content.”

On Monday, two former senators, who voted to evict two large US military bases from the Philippines in 1991, had asked the high court to rule that the pact was unconstitutional, saying the government had failed to uphold and protect the country’s sovereignty and national interests.

Former senators Rene A.V. Saguisag and Wigberto E. Tañada, along with academicians, activists and lawyers, filed a 63-page petition for review before the high court questioning the EDCA.

The petitioners said that with EDCA, not only is the Philippines not receiving any remuneration for allowing US presence in the country, it is committed to making all efforts to facilitate US presence in the country, including providing security for the facilities, equipment and supplies.

The petitioners claimed that the agreement has made the country a “target of US enemies” because US military facilities located here can be considered effectively contributing to US military action.

They said that the agreed locations for the bases could be “put in harm’s way if the US enters into an international armed conflict even if the potential US conflict is not geographically in the Philippines.”

Among the provisions of the Constitution that were violated by EDCA is the prohibition on nuclear weapons in the country. The petitioners said there was “no absolute” statement in EDCA that prohibits the entry of nuclear weapons into the country, only saying that it disallows the pre-positioning of nuclear weapons.

Mr. Aquino said he was not worried by the legal challenges to the military pact with the United States, the Philippines’ former colonial master and oldest ally in the Asia-Pacific region.

“That was expected,” he told reporters at a naval base on the western island of Palawan. “It was expected that there would be quarters that would file it.”

The 15-member SC is expected to take up the petitions next week. Mr. Aquino does not control the court but has an unprecedented majority in both houses in Congress.

The military said the accord could upgrade the country’s ability to deal with external threats, including intrusions across its vast maritime borders.

EDCA was said to have been rushed for signature by Defense Secretary Voltaire T. Gazmin and US Ambassador Philip S. Goldberg a few hours before the arrival of US President Barack H. Obama for an overnight stay in Manila on April 28.

The Department of Foreign Affairs (DFA) yesterday said that it is ready to defend the EDCA from any legal challenge.

“We respect the rights of the petitioners to file a case before the Supreme Court. The Executive stands by the constitutionality of EDCA and is prepared to defend the agreement before the high court,” Foreign Affairs Spokesperson Charles C. Jose told reporters yesterday in a press briefing.

“The Philippine panel negotiated for an agreement that respects the Philippine Constitution and Philippine laws,” he added.

Mr. Jose earlier said that the “EDCA is mainly about giving US access to and use of [Filipino military] facilities where they (US) can do construction work and prepositioning of equipment and material.”

The government earlier defended the EDCA, saying the US will be helpful if ever China decides to attack the Philippines over its ongoing maritime disputes at the West Philippine Sea.

The President said yesterday that the country may raise to the international tribunal China’s reclamation activities in the disputed shoals over the West Philippine Sea.

Mr. Aquino reiterated that China’s construction activities on Mabini Reef, seen as an airstrip, is a clear violation of an agreement signed between regional neighbors last 2002.

“The act of putting up structures there, to my mind, is an obvious violation to the Declaration of Conduct of Parties on the South China Sea (DoC),” he said.

“These construction of facilities, their reclamation at Mabini Reef, are indeed violation of both the spirit and the letter of the DoC, which was agreed upon in 2002. And we brought this up, and we will be bringing it up again before ASEAN [Association of Southeast Asian Nations] and probably also in ITLOS [International Tribunal for the Law of the Sea],” he added.

Meanwhile, the President said that as a signatory to the United Nations Convention on the Law of the Sea (UNCLOS) the country could not impose capital punishments to those foreigners caught poaching in the Philippine waters.

“Under UNCLOS, poachers in particular, could not be meted with detention,” Mr. Aquino said.

“I am trying to remember the exact phrase, but imprisonment cannot be -- and other forms of corporal punishment -- cannot be meted out for poaching,” he added.

Mr. Aquino said the Philippines signed the UNCLOS in 1982.

He added that instead of imprisonment, the country could instead arrest or fine the poachers, but imprisonment as a penalty cannot be meted against them.

Citing article two of the Constitution, the President said the second article reads “Adopts the generally accepted principles of international law as part of the law of the land.”

The Philippine National Police’s maritime group earlier this month apprehended a Chinese fishing boat with 11 crew members on board off what locals call Hasa-Hasa Shoal where they found around 500 turtles, a protected species in the country.

Another Chinese boat reportedly escaped. -- Mikhail Franz E. Flores, Imee Charlee C. Delavin, Ailyn D. Galura with Reuters