By: Joel R. San Juan
THE solicitor general has insisted that the Enhanced Defense Cooperation Agreement (Edca) between the Philippines and the United States is a valid executive agreement that does not need concurrence of the Senate.
In its 42-page memorandum submitted to the Supreme Court, Solicitor General Florin Hilbay stressed that a referral to the Senate of the agreement can be construed as nullification of the agreement for non-compliance of Article 18, Section 25 of the Constitution.
He added that a referral to the Senate would diminish the President’s powers and result in an international embarrassment for the President, adversely affecting the country’s standing in the international community.
It can be recalled that a court-mandated referral to the Senate was floated by Associate Justice Marvic Leonen during oral arguments on the petitions seeking to declare as unconstitutional the agreement.
The solicitor general concluded that referral to the Senate is “plain and simple delay.
“Even after the Edca passes the Senate, petitioners are bound to demand the nullification of the agreement once again, bringing the process back to square one,” the chief government counsel said.
Furthermore, Hilbay questioned the legal standing of the petitioners to file the petition.
He said as a general rule, only the Senate as an institution may sue against any alleged impairment of its institutional prerogatives.
The Senate’s silence and nonparticipation in the petitions, according to Hilbay is an affirmation of the President’s characterization of the Edca as an executive agreement.
“To date, the Senate has not issued a resolution expressing its objection to the Edca, much less authorized any of its members to file a suit on its behalf,” he pointed out.
Hilbay also defended the President’s decision to enter into the Edca, saying that it is within the President’s powers as Chief Executive and Commander in Chief to prepare against threats to national security.
“In choosing to enter into the Edca, the President has made the decision to formalize pre-existing licenses into a framework agreement that clarifies the rights and obligations of the parties. Such decision is in response to the implementation gaps that the government seeks to address through the Edca,” the memorandum said.