Oral arguments on EDCA center on West Philippine Sea

By on November 19, 2014

US Marines Typhoon 'Haiyan' (local name 'Yolanda') relief operations in Visayas. (Photo by Lance Cpl. Caleb Hoover / Wikipedia)
US Marines Typhoon ‘Haiyan’ (local name ‘Yolanda’) relief operations in Visayas. (Photo by Lance Cpl. Caleb Hoover / Wikipedia)

MANILA — The oral arguments on the petitions against the Enhanced Defense Cooperation Agreement (EDCA) conducted at the Supreme Court (SC) on Tuesday centered on the issue of the West Philippine Sea.

Senior Associate Justice Antonio Carpio asked Atty. Harry Roque on how he would advise President Benigno S. Aquino III in case China attacks Philippine territory.

Roque replied that he will advise the President to do everything except strengthening the Philippines’ alliance with the United States.

Carpio showed an 1899 map of the Philippine Islands issued by the United States.

The map includes Scarborough Shoal as part of Philippine territory.

Carpio referred to a map showing the South China Sea, the Exclusive Economic Zones (EEZs), and the 9-dashed lines.

He asked Roque that if China evicts the Philippine Marines in the West Philippine Sea, can the Philippines invoke the MDT?

”We can, but we do not know if they (US) will act,” Roque said.

Carpio said that the Mutual Defense Treaty (MDT), Enhanced Defense Cooperation Agreement (EDCA) can be invoked in case a Philippine vessel is sunk by a Chinese vessel in the West Philippine Sea.

”We are assuming that the MDT, for purposes of this case, is constitutional, is that right?” Carpio asked.

Roque replied in the affirmative.

Associate Justice Marvic Leonen also asked Roque if he would agree that it would be part of the relief that we can actually simply order the transmittal of the EDCA to the Senate?

”We do not have operational control over the kinds of activities that the American troops will engage in under the EDCA,” Roque said.

He said that EDCA is not valid following Article 5 of the New Civil Code, as it does not comply with Article XVIII, Section 25 of the Constitution.

He added that under Article XVIII, Section 25 of the Constitution, the Congress may even choose to submit a treaty to the people for ratification.

Leonen asked Agabin if he knows of any case wherein transcendental importance was used by the SC in lieu of actual controversy?

Agabin replied in the positive. He said that in the case of the province of North Cotabato vs. government, the SC granted standing because of an issue of transcendental importance.

Leonen asked Agabin if he would agree with him that none of the sitting senators joined him as petitioners in the case.

Agabin answered in the affirmative.

Leonen said that EDCA is signed simply by a “defense secretary on our end.”

Agabin replied in the affirmative, “but the defense secretary is the representative of our President”.

Leonen noted that none of the petitioners requested for the mandatory procedural transmittal of the EDCA to the Senate.

He asked Agabin if it is possible for the SC to declare the EDCA as partly constitutional?

Agabin said that he believes so.

Leonen noted that Agabin’s co-counsel earlier stated that the EDCA cannot be declared partly constitutional, partly unconstitutional.

Leonen asked Agabin if he would agree that if the President transmit the EDCA to the Senate, this case will be moot and academic?

Agabin replied in the negative because transmittal of EDCA to Senate does not mean that it cannot be challenged on substantive grounds.

When asked about the characteristics of a military base, Atty. Rachel Pastores said that it involves territoriality and ownership.

She added that activities under EDCA will be broader in scope.

She said that the Visiting Forces Agreement (VFA) only allows military exercises; EDCA even allows bunkering, among others.