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The mess created by Aquino’s defense treaty

What a mess President Aquino has put the country into by rushing the signing of the Enhanced Defense Cooperation Agreement (EDCA) with the US, just so he can boast that US President made a state visit under his watch. In order to speed up the negotiations, Aquino made the talks practically secret and refused to consult with the Senate, which the Constitution says must ratify any treaty the country enters into with another nation.

I strongly suspect it was Aquino and our ambassador to the US Jose Cuisia who offered the Americans the treaty in exchange for Obama’s visit.

With both of them having just two years left in office, Aquino and Cuisia were desperate not to be in the league of President Estrada and his ambassador who failed to get the president of the most powerful nation on earth to visit the country.

Indeed, Obama had already visited Indonesia (twice), Thailand, Camdodia, and Burma—countries with which the US doesn’t have any of that “special relationship” the Philippines is proud of. The window was fast closing: it’s 2014 and never has a US president visited a Philippine president on the way out of office. (What for?).

The EDCA shows all signs of an agreement rushed so that Obama could include the Philippines in his Asian tour to oversee its signing. The Americans even made Manila as his last stop, to send a message to Aquino that without the treaty Obama could cancel his trip to the Philippines for some reason.

“Good work, boys.” US State Secretary John Kerry with Foreign Affairs Secretary Albert del Rosario (file photo), US ambassador to the US Cuisia during Obama’s recent visit.

“Good work, boys.” US State Secretary John Kerry with Foreign Affairs Secretary Albert del Rosario (file photo), US ambassador to the US Cuisia during Obama’s recent visit.

Foreign affairs assistant secretary for American Affairs Carlos Sorreta, who has the rank of an ambassador, headed—the primus inter pares of—our negotiating panel since the talks with the US started in August 2013. A lawyer, and a veteran of many international negotiations, Sorreta is the most knowledgeable on the intricacies and legal aspects of international treaties, and has vast experience in negotiating with Americans.

He was suddenly yanked out of the panel March 1 at the height of the negotiations that US Ambassador Philip Goldberg had to tell the press Sorreta’s ouster didn’t mean there were any problems in the talks. Foreign Affairs Secretary Albert del Rosario assigned Sorreta to head the Foreign Service Institute, one of the most boring posts in the Foreign Affairs Department.

Did Sorreta’s boss feel that he wasn’t moving his ass fast enough to wrap up the treaty in time for the Obama visit? Or did Sorreta discover that the talks were a charade and that del Rosario and Cuisia had already told the US that the EDCA would be ready for signing in time for Obama’s visit?

Veteran journalist Ellen Tordesillas, who has been covering Foreign Affairs for decades, wrote in her blog:

“The talk in the DFA was that Sorreta was opposing a number of items in the draft agreement which he felt were in blatant violation of Philippine sovereignty. Del Rosario and Cuisia who were willing to give wholeheartedly what the Americans wanted, were annoyed with Sorreta’s stand.

“A source said, Sorreta was heard to comment during the negotiations: “I think we should put the country’s interest ahead of personal business interests.” Del Rosario and Cuisia were businessmen before joining the foreign service.

Cuisia in fact is the only ambassador to the US (out of the 200 envoys from all over the globe there) to be a part-time one, as he is an active board member of eight major Philippine corporations, including SM Prime Holdings, one of the country’s biggest firms. Cusia is vice-chairman of Philam Gen Life Insurance, chairman of Chevrolet’s Philippine distributor, and director of Integra Business Processing Solutions — firms which one way or another are linked to US businesses.

The Bulgarian 2006 treaty which was EDCA’s template (see my column of Wednesday, “PH-US pact bad copy of Bulgarian, Romanian treaties” ) was a comprehensive one with 9,000 words and dealt with all the necessary legal aspects involving foreign troops in a sovereign country, such as US troops’ exemption from visas, taxes and import duties, driving licenses, labor arrangements with locally recruited staff, to the all important jurisdiction over criminal and civil cases.

Our agreement was a third of that, with only 2,800 words, with the other aspects necessary to implement the pact to be subject of “to-follow” annexes.

Pact will cost us
A feather in Aquino’s and Cuisia’s caps the pact may be, but it would cost us severely.

Whether we like it or not, America’s military forward operating sites in Bulgaria and Romania is to Russia, what their new sites in our military bases will be to China: “Flexible forward American bases,” as Russian President Vladimir Putin put it in 2007, which he said raised tensions in his region. Russia retaliated to Bulgaria’s giving the US bases by pushing up the prices of gas it sells to the country.

First, we filed a suit in an international arbitration body against China, we had our top diplomat the foreign affairs secretary ranting against Chinee bullying, and now we entered into a pact with the US to allow its forces and war materiel “pre-positioned” on our soil.

Two days after the EDCA signing, it was the foreign affairs secretary, and not the defense secretary. who opened the war-game exercises by US and Filipino troops, and who emphasized that the pact will enhance the country’s maritime security.

The Chinese would be so dense if they didn’t get the message: “You are our enemy, and big-brother Uncle Sam, the sole military superpower in the world, is behind us now, and his troops and supplies will be on our soil very soon to fight you.”

With the EDCA transforming our territory into America’s forward operating site, its 21st century version of military bases in the region, I don’t think China would ever see us as an ally or even a friend in the region it would assist through massive official development assistance, as it has in the case of Cambodia and even Vietnam.

However, once our senators realize that they are being made stooges of Aquino — who after all has just two years in office — and if they find some shred of dignity, they would require that the agreement be ratified by the Senate. The Constitution is quite categorical:

“Foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.” ( Section 25, Article XVIII).

I can’t see how this government can stretch logic and language so it could skirt such very categorical provisions of the Constitution, how it can claim that US military structures built to house its pre-positioned war materiel aren’t “foreign military facilities” or that the American troops manning them aren’t foreign military troops on Philippine soil. How can Aquino commit this nation, without the Senate’s appoval, to a ten-year pact which will be in effect long after he steps down to spend his time driving a Porsche around Tarlac?

The arguments raised by Aquino’s officials—that EDCA is merely an extension of the Mutual Defense Treaty of 1951 and the Visiting Forces Agreement of 1998—are absurd and utterly false.

The Mutual Defense Treaty did not authorize the establishment of US military bases in the country. It was the US Military Bases Treaty that did, which was made in 1947 when our war-ravaged country was so dependent on the US aid. But the Senate refused to extend that pact in 1991. The Visiting Forces Agreement of 1998 merely specified the legal framework covering US military personnel in the Philippines engaged in joint exercises with Filipino forces.

Political manservant
What a political manservant to Aquino Senate President Franklin Drilon has become when he said Monday: “The Senate cannot compel Malacañang to submit the EDCA for ratification.”

Has he forgotten, or chose to forget what the Constitution says, that all treaties entered into by the President must be ratified by the Senate? Is he openly saying the Senate won’t fulfil its constitutional role?

And we have precedents which we cannot pretend not to exist.

Bulgaria and Romania had been under dictatorships for decades. Yet their governments demonstrated such respect for their constitutions when they asked their parliaments to approve in 2006 their defence agreements with the US, which Aquino’s EDCA copies nearly word for word.

But then, even if by some miracle the Senate ratifies the EDCA, we face a bigger, probably insurmountable obstacle.

The Constitution not only requires its ratification as a treaty by our Senate, but that it also be “recognized as a treaty by the other contracting State.” In the case of the US, its Senate will have to ratify EDCA as a treaty, just as the US Senate ratified in March 1952 the Mutual Defense Treaty signed in August 1951.

Will the US Senate bother to ratify the EDCA?

I don’t think so. The superpower will invoke the agreements with Romania and Bulgaria which didn’t require the US Senate ratification. (The constitutions of the two Balkan countries did not require, as it does in our case, that the agreements must be “ recognized as a treaty by the other contracting State.” )

Such a fine mess Aquino has brought us, again, just as the case of his pact with the Moro Islamic Liberation Front, which most likely will go on a war-path when the Supreme Court rules it unconstitutional, or if Congress refuses to enact the law to give the insurgents their own substate.

What happens if the Supreme Court rules that it must ratify the EDCA, if the Senate blocks the treaty, or if it ratifies it but Aquino is unable to get the US Senate to do the same and therefore has to scrap the pact?

What if after 2016 an independent Senate that is not servile to Aquino decides to put the 10-year pact to a vote for ratification, and the majority wins to scrap it?

Our image in the US, as it had happened in 1991 when the Senate voted against US military bases, would be that of an ungrateful, arrogant former colony in the East that snubbed the sole superpower in the world. And since 1991, we know the consequences of such a development: US development aid would trickle to zero, and American business interest would wane.

The US would be tellin us: “It was your choice to scrap a new defense agreement we signed, go deal with China by yourselves!”

With the quagmire Aquino has brought our country into, the only good thing that could come out of this sorry episode is for the Senate to realize how much it has become so servile to Mr. Aquino’s wishes, how much it has defaulted on its constitutional role as a check on this administration, and that it has to require the EDCA’s ratification by the body.

Is Drilon so afraid that he can’t convince his colleagues to ratify EDCA, now that he doesn’t have PDAF or DAP to bribe them?