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.
E-mail: attyjosesison@gmail.com
source:
(The Philippine Star)
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