Abrogate EDCA?

THE short visit of US Vice President Kamala Harris to the lush province of Palawan, where two of 10 “agreed locations” under the US-Phlippines Enhanced Defense Cooperation Agreement (EDCA) now operate, has focused so much attention on the agreement which some critics say is constitutionally flawed.

They want it abrogated.

But the agreement has a fixed term of 10 years until April 29, 2024, after which it shall continue in force automatically unless terminated by either Party by giving one year’s notice through diplomatic channel of its intention to terminate the agreement.

Signed in Manila on April 29, 2014, 23 years after the closure of the US military bases here, EDCA allows US troops access to designated Philippine military facilities to construct their own structures there and to preposition aircraft, vessels, equipment and materiel for their own use. These are called “agreed locations” in lieu of “bases.”

EDCA is considered an implementing agreement of the 1999 Visiting Forces Agreement (VFA), which in turn is considered an implementing agreement of the 1951 Mutual Defense Treaty (MDT).

The end of the 1947 military bases agreement in 1991 did not bar US forces from coming to the Philippines under the MDT. But since nothing defined their rights and duties in the country, we decided to conclude a VFA. This Foreign Secretary Domingo Siazon Jr. and US Ambassador Thomas Hubbard signed in 1998.

In 1999, President Joseph Estrada, who used to be against the bases, ratified the VFA with the concurrence of the Senate. As Senate majority leader at the time, I co-sponsored the Senate resolution of concurrence, together with Senators Blas Ople and Rodolfo Biazon, chairmen of the Senate foreign relations and defense committees respectively.

The VFA was challenged before the Supreme Court but prevailed.

In 2014, after President “Noynoy” Aquino railroaded an anti-Catholic Reproductive Health Act to fulfill a promise he had made to US President Barack Obama and Secretary of State Hillary Clinton, he came up with EDCA to make up for President Cory Aquino’s failure to extend the term of the US bases in 1991, when the Senate rejected the new treaty allowing the bases another 10 years.

Cory marched from the Luneta to the Senate session hall to try to pressure the senators, but in vain.

EDCA was sprung upon the nation without much fanfare, and Defense Secretary Voltaire Gazmin and US Ambassador Philip Goldberg scrawled their respective signatures on the last page of the document without their names being typed below their signatures. This was probably the first such monumentally important state document that was so shabbily treated.

EDCA’s constitutionality was challenged before the Supreme Court. But

Noynoy Aquino was fully prepared for it. In 2011-2012, he had Supreme Court Chief Justice Renato Corona removed by bribing 19 of 23 senatorjudges of the Senate impeachment court (P50 million to P100 million each) to convict him on one questionable impeachment charge. Then he named his protege Maria Lourdes Sereno, the youngest member of the court, as his replacement, and she constitutionalized EDCA in 118 pages.

In 2018 President Rodrigo Duterte presided over Sereno’s own removal after a quo waranto proceeding initiated by Solicitor

General Jose Calida found that she had failed to comply with basic financial requirements when she was appointed, and therefore never really legally held the office.

EDCA’s “validity” rests on Sereno’s thesis that claims it was not necessary for the agreement to take the form of a treaty, despite two clear constitutional provisions to that effect.

Article XVIII Section 25 provides that “[a]fter the expiration of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, 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 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 4 of the same Article XVIII provides that “all existing treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least two-thirds of all the members of the Senate.”

Sereno’s ponencia argues that the VFA already allows US military and civilian personnel to enter the Philippines; EDCA merely provides the mechanism to identify the “locations” where they may perform their activities.

“There is no basis to fear,” says the ruling, “that the Philippines may be targeted by enemies of the US because the ‘agreed locations’ in the Philippines cannot be considered US territory or bona fide US military facilities.”

It is unbelievably shabby thinking but, until revoked, it remains the basis of our legitimating the agreement. In case of war involving the US, before the first US F16s start flying out of these “agreed locations,” the enemy will not bother to ask whether or not these locations are harmless Philippine territory. I’m afraid they will simply assume they are full-fledged US military bases and legitimate military targets. The Supreme Court’s silly ruling will not save us.