Primer on EDCA, by one of ‘Magnificent 12’

Rene A.V. Saguisag was one of the “Magnificent 12” — some say “Malevolent 12” — senators who voted in 1991 to remove US military bases from the Philippines. Questioning the newly signed Enhanced Defense Cooperation Agreement, that allows US troops to use any Philippine military installation, he wrote this primer:

1. What is required for an international agreement to be valid?

Sec. 21 of Art. VII of the Cory Constitution says: “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.”

2. Is the EDCA constitutional?

Permit me to doubt. Sec. 25 of Art. XVIII of the same Constitution says foreign “troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate ... and recognized as a treaty by the other contracting State.”

3. How long will the EDCA last?

Initially for ten years, but there is automaticity in extensions, so that my apos, eldest not quite six, may be affected. EDCA says it “shall have an initial term of ten years, and thereafter, it shall continue to be in force unless terminated by either party by giving one year’s notice through diplomatic channels.”

Government should not settle for a propaganda half-truth and should be more open and candid on the open-ended arrangement.

4. As a member of the Malevolent/Magnificent 12 who ended the presence of foreign troops of more than 400 uninterrupted years, you (RAVS) keep saying EDCA is a rotten egg, can you lay a better one?

Let me try. The Americans should be asked to return the Bells of Balangiga, now in Fort Warren, just outside of Cheyenne, with another in South Korea. These trophies are Catholic Church property taken in 1901.

5. And then?

They should be asked to put troops and facilities in Ayungin and Scarborough in new bases there. We should be ready to die to the last American.

6. Why allow them to use our bases?

No, they should build their own. They can afford to do so. In Ayungin, Scarborough, off Batanes, and the like, which we should run.

7. We are weak; can we defend our territory alone?

It is a question of heart, as shown by the Vietnamese in defeating the French and the Americans. And the US and Japan will help, if it would be in their national interests to do so. EDCA or none, let’s shed our naiveté. No permanent friends or enemies, only permanent interests, said Lord Palmerston. Japan was our foe in WWII when we were one huge military base of the US. Japan successfully invaded us anyway.

8. But, doesn’t EDCA only implement our Mutual Defense Treaty of 1951?

It is superseded by the 1987 Constitution, and both our and American jurisprudence uphold the “super-cession” theory.

9. What case law?

E.g., Edye v. Robertson, 122 U.S. 580 (1884) illustrates the view that Congress has the power to override treaty obligations. What more with the people ratifying a Constitution? Edye is one of a group of nearly contemporaneous US Supreme Court decisions towards the end of the 19th century that asserted the supremacy of federal statutes over prior treaties, which have no superior sanctity. H. Steiner and D. Vagst, Transnational Legal Problems 587 (1985, the duo were my team teachers in the subject at Harvard Law in 1967). Our own case law, beginning with Ichong v. Hernandez, 101 Phil 1155 (1957) — all the way to the 2002 case of Mark Jimenez — has language to the same effect, but all in the nature of obiter, our Supreme Court having found no conflict between a treaty and the local or municipal law.

Where we have a world body or an arbiter, the adjudicators will follow “the cardinal rule that provisions of municipal law cannot prevail over a treaty” (Steiner and Vagst, supra). But our SC should follow the obiter in Ichong, Garcia, Hechanova and Puruganan (Jimenez) in light of our own best national interests.

10. Why be sensitive to the presence of US soldiers?

Given the history of abuse from the time Prez McKinley knelt in the White House and was told to Christianize us. The GIs sang “Oh, The Monkeys Have No Tails In Zamboanga.” Racist. Gen. Smith ordered everyone above ten killed and to turn Samar into a “howling wilderness.” It was only in 1967 when the US Supreme Court allowed interracial marriages. In May 2004 I visited the Victoria Manalo Draves Park in San Fran. She won two gold medals in London. She had to conceal her being half-Pinoy to be able to practice in pools for whites only. She came home a decade ago, to acclaim, in Orani, Bataan where her musikero father hailed from.

11. What about other foreign troops?

The Japanese would probably raise questions also, if only because of the comfort women still seeking justice. The Koreans have had a battalion in Cebu for months now helping Yolanda victims. No static. The Japanese, 110V; the Kanos, 220V.

12. Would the Malevolent/Magnificent 12 vote “No!” today?

I don’t know. 9/11, which killed 16 Filipinos, may have introduced a new dimension. But, there seems to be no threat now from Al Qaeda affecting us today with a sense of immediacy. The Americans have helped in Mindanao against Fundamentalist Talibanic elements. No static either.

13. Why did Sec. Gazmin sign the EDCA for us?

Should have been some civilian. In EDSA ‘86, the military wanted some camp for oath taking to better protect us. Prez Cory insisted on a civilian facility, hence, Club Filipino. Symbols matter. This Sag[u]isag ng Pangulo was Present at the Creation.

*      *      *

Catch Sapol radio show, Saturdays, 8-10 a.m., DWIZ (882-AM).

Gotcha archives on Facebook: https://www.facebook.com/pages/Jarius-Bondoc/1376602159218459, or The STAR website http://www.philstar.com/author/Jarius%20Bondoc/GOTCHA

E-mail: [email protected]