Miriam: SC will junk PH-US military deal

MANILA, Philippines – Even before a case could be filed before the Supreme Court, Senator Miriam Defensor Santiago already predicted the legal defeat of the Philippines’ military agreement with the United States.

Santiago said it is “highly likely” that the Court will declare the deal unconstitutional, insisting that it is a treaty and not a mere executive agreement.

The constitutional law expert questioned the authority of Defense Secretary Voltaire Gazmin and US Ambassador to the Philippines Philip Goldberg to sign the deal formally known as the Enhanced Defense Cooperation Agreement (EDCA).

“An agreement signed by a defense secretary and a US ambassador should not be the new normal. It should be declared abnormal because of the particular importance of the EDCA in the context of our Constitution,” Santiago said in a statement on Thursday, May 8.

Santiago said she expected the High Tribunal to rule in favor of “petitions that the militant left intend to file.” Militant groups like Bayan Muna announced last week their plan to question the deal in Court but have yet to file a petition.

Citing international law, Santiago said that the “personal participation of the head of state” – in this case the presidents of the two countries – is necessary for “treaties of particular importance.”

She said because President Benigno Aquino III and US President Barack Obama did not sign the agreement, Gazmin and Goldberg should have established their authority by producing a document known as “Full Powers.”

Santiago added that a head of state enjoys inherent capacity to represent and act for the state but this can be shared only with the head of government and the foreign minister.

“Did Defense Secretary Voltaire Gazmin and US Ambassador Philip Goldberg present their Full Powers?” she asked.

Signed hours before Obama’s state visit to Manila on April 28, the agreement gives US troops greater access to Philippine bases. The deal also allows US forces to build facilities and store equipment in local bases, free of charge. It is a 10-year agreement but will remain in force until either country terminates it.

Santiago, former senators, and militant groups criticized the lack of transparency in crafting the deal, with a copy released only a day after it was signed.

The executive branch defended the agreement, saying it consulted congressional leaders. It also maintained that the deal is an executive agreement that does not require Senate approval.

‘PH can invalidate deal’

Santiago, chairperson of the Senate foreign relations committee, said the Philippines can cite the 1969 Vienna Convention on the Law of Treaties to invalidate its consent to the agreement.

“Article 46 [of the convention] provides that if a state’s consent to be bound by a treaty has been expressed in violation of its constitution, the state may invoke that violation as a ground for invalidating its consent, if the violation was manifest and concerned a rule of internal law of fundamental importance,” she said.

The senator reiterated her view that the deal violates 3 constitutional provisions:

1. “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.” (Article 7, Section 21)
2. “After the expiration in 1991 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.”  (Article 18, Section 25)
3. “The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.” (Article 2, Section 8)

Santiago also announced that she will hold a separate committee hearing to look into the agreement, instead of holding a joint investigation with the defense committee.

“Presumably, the defense committee will concentrate on the aspects of military strategy; while [I] shall confine [my] own committee hearing to the issues of constitutional law and international law,” she said.

Senate defense committee chairman Antonio Trillanes IV called for an inquiry into the agreement. A supporter of the deal, the former Navy officer called the agreement a “security blanket” of the Philippines.

‘We can’t force executive’

Senator Francis Escudero said the Senate cannot force the executive branch to consider the agreement a treaty.

Escudero weighed in on the debate while admitting he has yet to read the deal.

“Legally, the Senate cannot compel the executive to submit a document for ratification. That is a decision within the ambit of the executive. Even if we are raring to ratify it, if it’s not submitted to us, there is nothing to vote on so it’s the decision of [the] executive,” said Escudero, echoing the opinion of Senate President Franklin Drilon.

Escudero also asked why the Philippines will insist on considering the deal a treaty if the US only sees it as an executive agreement. He cited debates on the 1999 Visiting Forces Agreement. 

“Nung pinasa ang VFA, ni-ratify, nagrereklamo tayo, bakit ang Amerika, ‘di niratify? Bakit ang tingin ng Amerika, mababa lang, ‘di treaty? Ganyan din tingin ng Amerika diyan. Tayo i-elevate na naman natin sa pagiging treaty. Masyado naman tayong nagpapaapi.”

(When VFA was passed, ratified, we complained: why didn’t America ratify it when we did? How come America sees it as lower than a treaty? That is also how America sees the deal now. And here we are elevating it to a treaty. We are allowing ourselves to be the underdog.) – Rappler.com