This is a Resolution on the Motion for Reconsideration seeking to reverse the Decision of this Court in Saguisag et. al., v. Executive Secretary dated 12 January 2016.
Petitioners claim this Court erred when it ruled that the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the US was not a treaty. In connection to this, petitioners move that EDCA must be in the form of a treaty in order to comply with the constitutional restriction under Section 25, Article· XVIII of the 1987 Constitution on foreign military bases, troops, and facilities. Additionally, they reiterate their arguments on the issues of telecommunications, taxation, and nuclear weapons.
The principal reason for the Motion for Reconsideration is evidently petitioners’ disagreement with the Decision that EDCA implements the VFA and Mutual Defense Treaty (MDT).
Petitioners argue that EDCA’s provisions fall outside the allegedly limited scope of the VFA and MDT because it provides a wider arrangement than the VFA for military bases, troops, and facilities, and it allows the establishment of U.S. military bases.
Whether or not EDCA is a treaty.
Petitioners detail their objections to EDCA in a similar way to their original petition, claiming that the VFA and MDT did not allow EDCA to contain the following provisions:
1. Agreed Locations
2. Rotational presence of personnel
3. U.S. contractors
4. Activities of U.S. contractors
We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the presence of these provisions. The very nature of EDCA, its provisions and subject matter, indubitably categorize it as an executive agreement – a class of agreement that is not covered by the Article XVIII Section 25 restriction – in painstaking detail. To partially quote the Decision:
Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate with which they are concluded.
As culled from the deliberations of the Constitutional Commission, past Supreme Court Decisions, and works of noted scholars, executive agreements merely involve arrangements on the implementation of existing policies, rules, laws, or agreements.
They are concluded
(1) to adjust the details of a treaty;
(2) pursuant to or upon confirmation by an act of the Legislature; or
(3) in the exercise of the President’s independent powers under the Constitution.
The raison d’etre of executive agreements hinges on prior constitutional or legislative authorizations.
The special nature of an executive agreement is not just a domestic variation in international agreements.
International practice has accepted the use of various forms and designations of international agreements, ranging from the traditional notion of a treaty – which connotes a formal, solemn instrument – to engagements concluded in modern, simplified forms that no longer necessitate ratification.
An international agreement may take different forms: treaty, act, protocol, agreement, concordat, compromis d’arbitrage, convention, covenant, declaration, exchange of notes, statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other form.
Consequently, under international law, the distinction between a treaty and an international agreement or even an executive agreement is irrelevant for purposes of determining international rights and obligations.
However, this principle does not mean that the domestic law distinguishing treaties, international agreements, and executive agreements is relegated to a mere variation in form, or that the constitutional requirement of Senate concurrence is demoted to an optional constitutional directive. There remain two very important features that distinguish treaties from executive agreements and translate them into terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or implied authorization under the Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of executive agreements under serious question for the main function of the Executive is to enforce the Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of these rules. In turn, executive agreements cannot create new international obligations that are not expressly allowed or reasonably implied in the law they purport to implement.
Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are products of the acts of the Executive and the Senate unlike executive agreements, which are solely executive actions. Because of legislative participation through the Senate, a treaty is regarded as being on the same level as a statute. If there is an irreconcilable conflict, a later law or treaty takes precedence over one that is prior. An executive agreement is treated differently. Executive agreements that are inconsistent with either a law or a treaty are considered ineffective. Both types of international agreement are nevertheless subject to the supremacy of the Constitution.
Subsequently, the Decision goes to great lengths to illustrate the source of EDCA’s validity, in that as an executive agreement it fell within the parameters of the VFA and MDT, and seamlessly merged with the whole web of Philippine law. We need not restate the arguments here. It suffices to state that this Court remains unconvinced that EDCA deserves treaty status under the law.
We find no reason for EDCA to be declared unconstitutional. It fully conforms to the Philippines’ legal regime through the MDT and VFA. It also fully conforms to the government’s continued policy to enhance our military capability in the face of various military and humanitarian issues that may arise.