SC rejects Laude kin intervention in EDCA case

MANILA, Philippines - The mother and two sisters of slain transgender Jeffrey “Jennifer” Laude were not allowed to join the petitions in the Supreme Court (SC) against the Enhanced Defense Cooperation Agreement (EDCA).

In denying the petition of Julita, Marilou and Michelle Laude, the SC said the murder case against US Marine Joseph Scott Pemberton is a criminal proceeding not related to the constitutionality of the EDCA.

The resolution was issued before the start of oral arguments on the petitions of former senators René Saguisag and Wigberto Tañada against EDCA   yesterday.

“We deny the motion to admit the attached petition-in-intervention for lack of merit and strike out the petition-in-intervention and all its annexes from the record,” read the resolution.

The SC said the Laudes’ petition-in-intervention raised issues pending before the Office of the City Prosecutor (OCP) of Pampanga, where the murder case that they filed against 19-year-old Pemberton is   pending.

“Despite its apparent connection with the present case, the Laude case is inherently a criminal proceeding and is not related to the constitutionality of the EDCA,” read the resolution. “The Petition-in-Intervention similarly goes into evidentiary and factual issues, alongside its attachments. Thus, so as not to preempt the OCP, the motion is hereby denied.

“Discussing the sensitive nature of a pending criminal investigation is misplaced in the oral arguments concerning the constitutionality of the EDCA and must thus be disallowed during the oral arguments, so as not to pre-judge and affect the pending criminal proceedings in the Laude case.”  

Yesterday’s oral arguments revolved around the nature of EDCA as Saguisag and other petitioners argued that it is a treaty that needs concurrence of the Senate.

They refuted Malacañang’s defense that EDCA is a mere executive agreement between the Philippines and the US to implement the Mutual Defense Treaty (MDT) and Visiting Forces Agreement (VFA).

They said EDCA violates Article VII Section 21 and Article XVIII Section 25 of the Constitution, which require legislative concurrence for the entry of foreign troops and facilities in the country.

Saguisag’s counsel Harry Roque Jr. told justices that EDCA is a new policy premised on the presence of US military forces.

“It is not an implementing tool as the MDT already has a built-in implementing mechanism,” he said.

Roque said EDCA also goes beyond the VFA as it extends beyond military exercises, allows construction of facilities and pre-positioning of US military equipment and supplies in the country and gives the US the right to operate a telecommunication system.

“There is a violation of the prohibitory provisions of the Constitution,” he said.

Saguisag expressed fear that implementation of EDCA would pave the way for the return of US military bases.

“The agreement allows the presence of foreign troops that will last for a significant period of time,” he said.

Another counsel for petitioners, Rachel Pastores said President Aquino’s approval of EDCA was “in contravention of existing laws.”

The Philippines has no existing treaty with the US allowing the setting up of US military facilities in the country, she added.

Pastores further said EDCA is one-sided in favor of the US government.

“It’s a sellout of national sovereignty and national interest,” she said. “It’s in line with US defense policy and protects US strategic interest.”

Justices asked petitioners if the issues they had raised were procedural in nature and if they could possibly be resolved by executive action.

Associate Justice Marvic Leonen said the President could simply forward the EDCA to the Senate for concurrence and the petitions before the SC could become moot. 

Pacifico Agabin, another counsel for petitioners and a former UP law dean, did not agree.

“That (required concurrence) will comply only with procedural requirements under transitory provision. It can still be challenged on substantial grounds,” he said.

During interpellation, Roque cited the lack of operational control over activities under EDCA and possible entry of nuclear weapons in the country.

However, Leonen dismissed the argument as speculative and stressed that none of the incumbent senators had joined the petitioners in bringing the case to the SC, considering that it is their constitutional duty to concur on treaties.

Chief Justice Ma. Lourdes Sereno has agreed with this observation as she believes that the nature of allegations of petitioners was speculative.

The SC cannot presume the facts involving the agreed locations provided under EDCA, she said.

Sereno asked petitioners if the statement of objectives of the Armed Forces in EDCA could be considered grave abuse of discretion that could warrant SC action.

“Is it a grave abuse of discretion for any government to ask for help of an ally to provide measures to address the capability gaps?” she asked.

Associate Justice Estela Perlas-Bernabe asked petitioners if their issues could best be addressed by political solution.

Senior Associate Justice Antonio Carpio linked the EDCA to his favorite issue – the territorial dispute of the Philippines with China in the West Philippine Sea.

“If China evicts our Marines in the West Philippine Sea, can we invoke the MDT?” he asked.

He agreed with the reply of petitioners that the treaty may be invoked but that US compliance cannot be certain.

Carpio then presented an 1899 map of the Philippines issued by the US and which includes Panatag (Scarborough) Shoal as part of its territory.

The oral argument will continue next Tuesday, Nov. 25, with Solicitor General Florin Hilbay taking the podium to defend the legality of EDCA.

In an interview before the hearing yesterday, Hilbay reiterated that the EDCA is “just an implementing agreement.”

“There are general commitments under the MDT, there are more specific commitments under the VFA, the MDT implements all of those commitments through the power of the President as Commander-in-Chief, Chief Executive and head of foreign relations,” he said.

Hilbay said Senate concurrence is not needed before EDCA could be implemented because “the prior authorizations, the necessary licenses are already there.”

“It’s a different agreement in the sense that it articulates to finer details the general commitments under the MDT and supplements the VFA, but everything under the EDCA is possible because of the MDT and the VFA,” he said.