Around the Constitution

Article XVIII, Section 25, of the Constitution states that “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.”

The Enhanced Defense Cooperation Agreement or EDCA between the Philippines and the United States was declared not unconstitutional by the Philippine Supreme court in an en banc resolution, since according to them, it is an executive agreement, hence, it does not require senate and congressional ratification as required by Article 28, Section 25 of the Philippine Constitution. Well that does it, the highest court in the land had proclaimed its judgment. From here on, everyone must comply and respect the mighty decision. But wait. Do I see a protrusion? Is that a loose end?

That phrase "executive agreement"..., what is an executive agreement in the first place? It seems to be mightier than the mighty.

Dictionary.com- an agreement , usually pertaining to administrative matters and less formal than an international treaty, made between chiefs of state without senatorial approval.

Merriam Webster- an agreement between the United States and a foreign government made by the executive branch either alone or with Congressional approval and dealing usually with routine matters.

Lawyers .com- : an agreement (as an armistice) between the U.S. and a foreign government that is made by the president and usu. deals with a subject within the president's powers. An executive agreement does not carry the same weight as a treaty unless it is supported by a joint resolution. Unlike a treaty, an executive agreement can supersede a conflicting state law but not a federal law. 

In the foregoing definitions, what is common is that an executive agreement pertains to:

·       Administrative matters

·       Deals with routine matters

·       Deals with subject within the President’s power

Being such, an executive agreement does not require congressional or senate approval since it “does not carry the same weight as a treaty unless it is supported by a joint resolution”(meaning a joint resolution of the House of Congress and the Senate}. More so, in the United States, an executive agreement can’t supersede a federal law, it follows that all the more, an executive agreement cannot supplant, or by pass a constitutional limitation and prohibition, yet executive agreement was given prominence in this latest supreme court decision.

First, the big question is why was EDCA recognized as a mere executive agreement when it deals with matters that is neither trivial nor ordinary? On the contrary, it directly challenged the prohibition in the Philippine Constitution. The fact that it was raised for  resolution by the highest court in the land gives credence to the extraordinary character of the agreement, which should negate the conclusion that EDCA falls within the “ordinary course of trade or business”, that appropriately would only require an executive agreement. Second, executive agreement/s is not among the exception expressed in the constitution, hence, why does the decision indirectly consider it as such? Is there now a dangerous precedence, to the effect, that an executive agreement is elevated to the level above that of a treaty, that would necessitate a senate and congressional concurrence?

EDCA has its merits. It is either the Americans or the Chinese and clearly, by legitimizing EDCA the choice is the US. But, it should be on the basis of national consensus through the elected representatives. There is no obscurity in the constitution. In fact it is so clear, explicit and concise, any deviation from its letters should be in the form of a treaty duly ratified by the senate, and if need be by the people through a referendum. Again those are the solemn words of the charter, not mine.