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EDCA and the Constitutionality of the MDT

by Carlos D. Sorreta and Karla Mae G. Pabeliña

(c) Philippines-U.S. Amphibious Landing Exercise (PHIBLEX) Facebook Page
(c) Philippines-U.S. Amphibious Landing Exercise (PHIBLEX) Facebook Page

There are petitions in the Supreme Court challenging the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States.

The formal security relationship between the Philippines and the United States, as expressed through international agreements, has been challenged several times before with little success.

The current petitions introduce virtually no new approaches. As in prior challenges, these petitions use policy arguments to try to prove a legal case. Policy arguments have value in some cases before the Supreme Court. But in cases relating to the international  obligations  of  the  Philippines,  the  Supreme  Court  has  hesitated  to  strike  these  down  based on  policy  arguments.

As in prior challenges, the petitioners interpreted the provisions of the agreement completely out of context and utterly disregarding the clear intent of the parties.

The petitioners, however, have introduced a novel approach: challenging the constitutionality of the 1951 Mutual Defense Treaty (MDT) between the Philippines and the United States. They argued that the “MDT, a creature of a different era, has already been superseded by the 1987 Constitution and its renunciation of war as an instrument of national policy” (Saguisag v. Executive Secretary). This will be the first time the constitutionality of the MDT will be challenged before the Supreme Court. It is the position of the petitioners that since the EDCA is premised on the MDT, should the MDT be deemed invalid, so will be the EDCA.

The Philippines-United States security relationship was one of the hottest topics during the deliberations of the 1986 Constitutional Commission. The discussions on and off the floor on the provisions of an independent foreign policy, freedom from nuclear  weapons,  and  the  conditions  under which foreign bases, facilities and troops would be allowed in the Philippines were animated and influenced by the diverse views of the Constitutional Commission members.

Debates on the security relationship between the Philippines and the United States were not only limited among the members of the Constitutional Commission. Cause-oriented groups formally brought to the attention of the Commissioners their studied view that the MDT is invalid. Among these groups were  Bagong Alyansang Makabayan, Society of Professionals for the Advancement of Democracy, League of Filipino Students,  Kapunungan san Maguuma sa MasbateSimbahang Katoliko sa Barangay, Kabataan para sa Demokrasya at Nasyonalismo, and Masbate People’s Organization.

These deliberations did lead to a provision that dealt with the future presence of foreign military bases, troops and facilities in the country. These, however, did not lead to a decision to include a provision in the Constitution invalidating and terminating the MDT. To further bolster their position on the invalidity of the MDT, the petitioners have taken a very restrictive view of the pronouncement in the Constitution on the non-use of force. It is their position that the MDT should be read as a broadly worded instrument  –  the primary purpose of which is to precipitate war. They refuse to believe that it is a self-defense arrangement allowed under the United Nations Charter and not prohibited by the Constitution.

To believe the petitioners is to agree that the Philippines cannot use force under any circumstances. Even without delving into the records of the Constitutional Convention, it is clear from the Constitution itself that the prohibition on the use of force is not absolute. The Constitution enshrined what is considered the ‘war powers’ provision.

Perhaps the most telling argument that militates against the allegation that there is a total renunciation of war is that the Constitution itself allows for the declaration of a state of war. Specifically, Congress, by a vote of two-thirds of both Houses in Joint session assembled, voting separately, shall have the sole power to declare the existence of “a state of war.”

Two members of the Constitutional Commission, who would go on to write books about the Constitution, have taken the position that the Philippines has not renounced the ability to use force in self-defense.

Father Jose Bernas traces the origins of the language on renouncing war to the Kellogg-Briand Pact of 1928, and how this found its way to the 1935, 1973 and 1987 Constitutions. Father Bernas stresses that what the Constitution has renounced are wars of aggression. He even goes as far as to state that the power to wage a defensive war is the very essence of sovereignty.

Jose N. Nolledo is of a similar opinion. For him, what is renounced is only aggressive war because the Philippines, without violating the Constitution, in an act of self-defense, can engage in war. Professor Nolledo believes that defensive war is not constitutionally outlawed.

It is somewhat curious that the petitioners stopped short at the  jus cogens  and  erga omens  arguments. To emphasize how truly prohibitive war is, it is surprising that they did not take their arguments one step further and point out that war is  not only prohibited but is now a crime under the Statute of the International Criminal Court (ICC).

The petitioners’ failure in this area is not surprising at all. For, they were perhaps trying to avoid exposing the fact that  only wars of aggression are prohibited and punished by international law.

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*Carlos D. Sorreta is the Director of the Foreign Service Institute.
Karla Mae G. Pabeliña
is a Foreign Affairs Research Specialist with the Center of International Relations and Strategic Studies of the Institute.

The views expressed in this publication are of the authors’ alone and do not reflect the original position of the Foreign Service Institute, the Department of Foreign Affairs and the Government of the Philippines.