G.R. No. 212426 and G.R. No. 212444, July 26, 2016
Case Parties: Dissenting Opinion of Justice Leonardo-De Castro, et al. (re: Constitutionality of the Enhanced Defense Cooperation Agreement)

FACTS

This case involves the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States, executed in 2014. The majority opinion, penned by Chief Justice Sereno, upheld the agreement, emphasizing its strategic importance in light of regional security challenges, including territorial disputes in the West Philippine Sea. The majority argued that EDCA strengthens the Armed Forces of the Philippines and enhances the President’s capacity to respond to military crises, treating it as an executive agreement implementing the existing 1951 Mutual Defense Treaty (MDT) and the 1999 Visiting Forces Agreement (VFA), thus not requiring Senate concurrence.
Justice Leonardo-De Castro, joined by Justices Brion, Leonen, and Perlas-Bernabe, filed a dissenting opinion. The dissent centers on the mandatory constitutional process for allowing foreign military presence in the country. It references Senate Resolution No. 105, which expressed the Senate’s strong sense that a treaty concurrence is required for such agreements. The dissent argues that the strategic benefits or political wisdom of EDCA are irrelevant to the purely legal question of whether the constitutional procedure was followed.

ISSUE

Whether the Enhanced Defense Cooperation Agreement (EDCA) is unconstitutional for failing to secure the Senate concurrence mandated by Section 25, Article XVIII of the 1987 Constitution .

RULING

The dissenting opinion firmly rules that EDCA’s implementation without Senate concurrence is unconstitutional. The legal logic is anchored on a strict textual and historical interpretation of Section 25, Article XVIII of the Constitution , which states: “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate…” The dissent emphasizes that this provision is a clear, unequivocal, and mandatory transitory rule crafted by the Constitutional Commission specifically in anticipation of the post-1991 landscape after the expiration of the 1947 Military Bases Agreement.
The dissent rejects the majority’s characterization of EDCA as a mere implementing agreement of the MDT or VFA. It methodically analyzes EDCA’s provisions—such as granting U.S. forces operational control of agreed locations, authorizing prepositioning of equipment, and allowing for the construction of facilities—and concludes these actions constitute the establishment of “foreign military facilities” and involve the presence of “foreign military troops.” Citing the Court’s precedent in Bayan v. Zamora and the records of the Constitutional Commission, the dissent argues that Section 25 covers any of the three situations (bases, troops, or facilities) independently. Therefore, any agreement permitting any one of these elements demands Senate concurrence as a treaty. The constitutional process is not a mere formality but a substantive check to ensure sovereign consent, and bypassing it renders the agreement constitutionally infirm regardless of its perceived strategic utility.