Rush deal

It looks like the PNoy government is entering into another constitutionally questionable move with the impending approval and signing of the Agreement on the Enhanced Defense Cooperation with the United States of America (USA). Negotiations are reportedly in its final stages already so that the deal can be signed during the forthcoming visit of US President Barack Obama next month. Immediately noticeable here is this government’s eagerness to invariably accommodate and please Obama who has previously intervened in our purely internal affairs like in the management of our population through methods that eventually lead to abortion and moral decay in our society.

This Agreement would basically allow the United States forces access to Philippine military bases and joint use of the facilities therein, more specifically in Manila, Clark, Palawan, Cebu, Nueva Ecija and La Union for purposes of boosting the bilateral security cooperation between the two countries. The deal was conceived amid mounting concerns over China’s bullying in the disputed waters of the Western Philippine Sea which it is claiming to be part of its territory because it is within the so called South China Sea. The US military presence in the Philippine military bases will supposedly deter China to further stake its claim in the West Philippine Sea. Secondarily it will also enable the US forces to help in providing humanitarian assistance and services during natural disasters.

While members of the Philippine negotiating panel have repeatedly assured that the agreement will not violate our constitution and that we will not be giving up sovereignty over Philippine territory in the sense that there will be no US bases within our own bases, the deal remains to be constitutionally questionable.

The issue that may immediately arise here is not exactly about the violation of our sovereignty over Philippine territory. It concerns primarily Article VII Section 21 of the Constitution which provides that: “No Treaty or International Agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.” The deal in this case will reportedly be signed only by PNoy and will not be approved by the Senate. For all legal intents and purposes the deal is a Treaty or an “International Agreement” as it is actually an agreement between two nations. So the concurrence of two-thirds of all the members of the Senate is still required to be constitutionally valid.

In this connection the Philippine panel pointed out that the agreement on enhanced defense cooperation is merely an implementation of the Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA) both of which have been legally ratified by the Senate. Hence the panel argued that it is merely an Executive Agreement that no longer needs concurrence by the Senate. But, as correctly pointed out by Senator Miriam Defensor Santiago, allowing foreign troops and equipment on Philippine soil is a “major subject in itself” and not “a minor case of detail.” So she said that “it cannot be classified as an executive agreement but as a treaty to which the Philippine Senate must give its concurrence.” In any case, the question of which of the conflicting viewpoints is correct, whether it is that of the Philippine panel or that of Senator Santiago, is an issue that can be authoritatively decided only by the Supreme Court. So eventually the issue will also reach the Supreme Court. There is therefore no need to rush this deal just to please Obama.

 Furthermore, it must be remembered that barely eight years after the Senate voted to close the US bases in 1991, the Philippines once again ratified the Visiting Forces Agreement (VFA) allowing joint drills between Philippine and US soldiers. And history tells us that said VFA had also encountered a constitutional problem when one of the visiting US soldier raped a Filipina in Olongapo. In that case, the jurisdiction of the Philippine courts to try the soldier has also been challenged when he sought asylum in the US embassy. This must also be carefully studied and considered before forging a deal with the Americans.

It must also be pointed out in this connection that while the agreement is aimed at boosting bilateral security cooperation, there is no assurance that the US government will be true to its commitment especially because it is only in the form of an Executive Agreement and not a Treaty concurred in by the Senate. Under International Law, a treaty is definitely more binding. Besides there is no assurance at all that the US will really comply with its commitment if its own national interest is endangered. This is basic.

So instead of entering into this agreement that may possibly lead to a dangerous confrontation, the better alternative is to just pursue the peaceful way by bringing the issue to the International Court of Justice. It is very clear under the United Nations Convention on the Law of the Sea that Philippines own the territorial waters within 120 nautical miles from its coast. So all those areas now being claimed by China is within the Philippine territory. We have definitely a stronger position under the existing international laws. It is more advisable to pursue this alternative.

Indeed there is even no assurance at all that if we allow the US forces access to our bases, China will be scared and will abandon its belligerent moves. PNoy should therefore not rush this deal. If at all he should get the concurrence of two-thirds of all the members of the Senate.

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