ATTENDANCE - YONIP – Intelligent Advocacy-Critical ... · Atty. Merlin Magallona - Dean, UP College of Law Hon. Rene Saguisag - Former Senator . Atty. Harry Roque - UP Institute

Republic of the Philippines CONGRESS OF THE PHILIPPINES

SENA TE Pasay City

COMMITTEE ON FOREIGN RELATIONS

DATE : Monday, December 1, 2014 TIME : 11:30 a.m.

VENUE : Committee Room Nos. 2 and 3 2nd Floor, Senate Financial Center, Roxas Boulevard Pasay City

AGENDA : Inquiry, in Aid of Legislation, on the Enhanced Defense Cooperation Agreement (EDCA) _______________________________________________________

ATTENDANCE

SENATORS PRESENT: HON. MIRIAM DEFENSOR SANTIAGO - Chairperson HON. SONNY ANGARA - Member HON. FERDINAND R. MARCOS JR. - Member HON. PIA S. CAYETANO - Member GUESTS/RESOURCE PERSONS: Hon. Albert del Rosario - Secretary, Department of Foreign Affairs (DFA) Hon. Voltaire Gazmin - Secretary, Department of National Defense (DND) Hon. Pio Lorenzo Batino - Undersecretary, DND Hon. Francisco Baraan III - Undersecretary, Department of Justice (DOJ)

1

COMMITTEE ON FOREIGN RELATIONS Monday, December 1, 2014 Page 2 Hon. Raymund Jose Quilop - Assistant Secretary, DND Hon. Florin Hilbay - Acting Solicitor General, Office of the Solicitor General Hon. Lourdes Yparraguirre - Ambassador Hon. Jose Eduardo Malaya III - Ambassador Hon. Neri Colmenares - Party-list Representative, Bayan Muna Dr. Roland Simbulan - Center for People Empowerment in Governance Atty. Merlin Magallona - Dean, UP College of Law Hon. Rene Saguisag - Former Senator Atty. Harry Roque - UP Institute of International Legal Studies Mr. Renato Reyes - Secretary-General, BAYAN SENATORS’ STAFF

Atty. Fatima Panontongan - O/S Santiago Atty. Abel Maglanque - O/S Santiago Atty. Donna Manlangit - O/S Santiago Mr. Arveen Patria - O/S Santiago Ms. Fara Fuentes - O/S Santiago Mr. Antonio Lapid - O/S Santiago Ms. Tanya Perez - O/S Santiago Atty. Minda Lavarias - O/S Marcos Mr. Julius Palamos - O/S Marcos Atty. Alain Baguisi - O/S Angara Mr. Hazel Villarba - O/S Angara Atty. Deegee Uy-Anastacio - O/S P. Cayetano Ms. Zheanne Aeron Dantis - O/S P. Cayetano Ms. Claire Hanopol - O/S P. Cayetano Ms. Kristela Castronuevo - O/S Recto Mr. Karl Esplana - O/S Binay Ms. Elaiza Balajadia - O/S Lapid Ms. Marla Carandang - O/S Trillanes SENATE SECRETARIAT:

Ms. Putli Suharni Samanodi-Candao- Committee Secretary, Committee on Foreign Relations Ms. Eleuteria L. Mirasol - Committee Secretary, Committee on Constitutional Amendments and Revision of Codes Ms. Jocelyn A. dela Cruz - Committee Stenographer, LCSS “B”

2

COMMITTEE ON FOREIGN RELATIONS Monday, December 1, 2014 Page 3 Ms. Cleofe Caturla - Committee Stenographer, LCSS “B” Ms. Ma. Rosalinda J. Catadman - -do- Ms. Carolina F. Driz - -do- Ms. Paulette L. Manuel - -do- Ms. Susana Grace L. Robles - -do- Ms. Cristina D.C. Astrero - -do- Mr. Larry Barruga - Committee “A” Staff Ms. Aren J. Aguila - -do- Ms. Eloi Tecson - -do- Mr. Hernani Novero - -do- Ms. Joanna Marie Toldeo - LCSS “A” Ms. Christine M. dela Rosa - LCSS “A” Mr. Ronnel Paulo C. Baldueza - LCSS “A” Ms. Nikkie B. Cabarle - LCSS “A” Ms. Kacy Marie H. Hernandez - LCSS “A” Mr. Raul Balansag - Legislative Page, OSAA-SSS Mr. Rolando Tancioco - - do - Mr. Hizar B. Sarmiento - Audio Operator

(For complete list, please see attached Attendance Sheet.)

3

COMMITTEE ON FOREIGN RELATIONS JADelaCruz I-1 December 1, 2014 11:04 a.m. 1

AT 11:04 A.M., HON. MIRIAM DEFENSOR SANTIAGO, CHAIRPERSON OF THE COMMITTEE ON FOREIGN RELATIONS, CALLED THE HEARING TO ORDER.

THE CHAIRPERSON. I understand that Senators Angara and

Marcos are coming and we proceed on that basis. If they don’t come,

we shall strike everything out from the record. But in order to save

time, we will start.

We shall call our resource persons whom we thank for coming.

First—[off-mike] to be followed by Dean Merlin Magallona and then the

Secretary of Defense, to be followed similarly by another person from

the Anti-EDCA panel.

First, let us deal with the rationale for this hearing. The Chair

verifies that it is not the intention of this hearing to compel the

President of the Philippines to submit EDCA after he has ratified it for

concurrence by the Senate. The Supreme Court has already made it

plain that the Senate does not have this power. Instead, our rationale

consists of certain provisions of no less than the Constitution itself. The

first is found in Article III, the Bill of Rights, concerning the people’s

right to information on matters of public concern. This matter has

raised a very high level of concern, not only among the students in

the campuses, but also among the professionals. And it is only right

that the Senate must respond to these calls for guidance.

4


The second rationale for this hearing is the power given by the

Constitution to the two chambers of Congress to conduct so-called

inquiries in aid of legislation. In respect of this constitutional provision,

the Rules of Procedure Concerning Inquiries in Aid of Legislation of the

Senate provides, and I shall read for a little while for those of us who

are not from the Senate: “Section 1. Power to Conduct Formal

Inquiries or Investigations. The Senator or any of its committees may

conduct formal inquiries or investigations in aid of legislation in

accordance with these rules. Such inquiries may refer to the

implementation or reexamination of any law or appropriation or in

connection with any proposed legislation or the formulation of or in

connection with future legislation or will aid in the review or

formulation of a new legislative policy or enactment. They may also

extend to any and all matters vested by the Constitution in Congress

and or the Senate alone.”

And further on, in Section 3, we find this important sentence:

“The filing or pendency of any prosecution of criminal or administrative

action shall not stop or abate any inquiry to carry out a legislative

purpose.” In effect, therefore, the Senate has unburdened itself of its

opinion concerning that constitutional provision by stating that nothing

prohibits the Senate and in fact, this attitude is reflected by the

Supreme Court itself in its decision entitled Romero versus Estrada

where the Supreme Court said not even a judicial proceeding can serve

5


to inhibit the power of the Senate to conduct inquiries in aid of

legislation.

Today, let us start, first of all, with the provision on the

Constitution on—not the Senate Rules. Let’s change that slide, please.

The slide on “no treaty or international agreement.” Article VII, Section

21, “No treaty or international agreement”—Kaya mahirap itong

intindihin. Ano ang agreement o dokumento na hindi pwedeng

pumunta sa Senado because the Constitution uses the very broad

phrase “or international agreement.” Ano pang agreement ang hindi

pwede diyan. “No treaty.” O maliwanag tayo, pag treaty hindi pwede.

Pero pati international agreement. “No treaty, no international

agreement shall be valid and effective…”—hindi lamang valid or

effective kung hindi “valid and effective”--“…unless concurred in by at

least two-thirds of the members of the Senate.” Ay ‘di ibig sabihin pala

kung baligtarin mo ito kung walang concurrence--and be careful, we

do not concur, we do not ratify a treaty. It is the President who ratifies

a treaty and the Senate merely concurs with the ratification. Having

clarified that, let us pay very careful attention to the wording of our

Constitution since it says, “No treaty or international agreement shall

valid and effective.” Both “valid and effective” are words you find here.

So both the validity, the effectivity depends on the concurrence of the

Senate. Ibig sabihin, kung walang concurrence ang Senado, walang

validity at walang effectivity. Paano po kaya maipaliwanag iyan?

6


Baligtarin mo lang. Probably, we can see the world-view of the framers

of our Constitution in their way. They locked up that sentiment in

these words.

And in addition, let us go to the transitory provision. You can see

it for yourself. We’ll go to the middle of this provision which states,

After so and so “foreign military bases…” One, bases. Number two,

troops or facilities. Kaya lahat na. Bases, troops, facilities, ano pa ang

matatawag mo na military bases. Nakalagay na lahat diyan. “Foreign

military bases, troops or facilities,” pinagbabawal, “shall not be allowed

in the Philippines except under treaty duly concurred in by the

Senate…” etcetera. Ngayon pag-uusapan natin ngayon, napakahigpit

ng pananalita ng ating Constitution. Mayroon pa kayang lusot ang

Office of the President? Dahil mukhang gustong-gusto ng mga sumulat

ng ating-–how do you say?—Constitution--Konstitusyon na lahat

kailangan ang pagsang-ayon ng Senado. Ano ang lusot mo diyan sa

ganyang lengguwahe? Gusto ko talaga malaman.

So let us proceed with our hearings this morning hoping that it

will help at the very least, help to elucidate the Filipino public on this

issue of the day.

We call on the major proponent of the EDCA, Secretary Albert

del Rosario of the Department of Foreign Affairs.

Sir, it is your podium.

7


MR. DEL ROSARIO. Good morning, Madam Chair, Senator

Ferdinand Marcos Jr.

Thank you for the invitation to attend this meeting and for the

opportunity to speak on the EDCA in the context of our national

security goals and the larger regional environment.

Madam Chair, in 1951, the Philippines and the US concluded a

mutual defense treaty. As a new nation, we needed the protection and

assistance of a strong ally to rebuild our war-damaged country. In the

60 years…/jadc

8

COMMITTEE ON FOREIGN RELATIONS Caturla II-1 December 1, 2014 11:14 a.m. 1 MR. DEL ROSARIO. …In the 60 years, the global security

environment has unfolded in ways that we could not have foreseen.

The Philippines has since emerged as among the staunchest

democracies and fastest growing economies in the region. The nature

of threats has also expanded to include issues like terrorism, climate

change and pandemics. On two many instances, the need for close

cooperation in humanitarian assistance and disaster relief has been

underscored.

In the Philippines, particularly in the last few years, there have

been direct challenges to our sovereignty from within our western

backyard. These challenges have started to directly impact our people.

For example, our fishermen have been barred from their

traditional fishing grounds in our Bajo de Masinloc. There is massive

reclamation occurring in the South China Sea including in our Kalayaan

Island Group. We have devoted a bigger share of our resources to

strengthen our national security. Considering our limited resources

and the pressing external challenges, however, assistance from our

allies can help bridge the gaps in our capabilities and allow us to have

the capabilities we need when we need them.

The US, our sole treaty ally has also had to respond to their own

set of challenges. Recognizing that the future of the US is linked to

Asia, they have embarked on a rebalance strategy hinged on the

strength of their alliances in the region. The congruence of interest

9

COMMITTEE ON FOREIGN RELATIONS Caturla II-1 December 1, 2014 11:14 a.m. 2 underscores the continued relevance of the Mutual Defense Treaty.

The Manila Declaration which I had the honor to sign with Secretary

Clinton in 2012 reaffirmed our obligations under the MDT. The MDT

remains the foundation of our bilateral security partnership. While we

have been implementing the MDT for over 60 years, we needed to set

more precise rules to achieve our higher level of defense cooperation.

The EDCA includes provisions on strengthening capacities for maritime

domain awareness and maritime security, as well as improving

interoperability. In addition, as part of modern defense cooperation

activities, there is a strong component for humanitarian assistance and

disaster relief. The EDCA also contains provisions that actually

implement existing law and policy in the Philippines but are not

contained in the VFA. These include the explicit affirmation of the ban

on nuclear weapons, a provision on the protection of the environment,

human health and safety, and the explicit exclusion of contractors from

the coverage of the VFA.

Madam Chair, on the question of whether EDCA should be

presented for Senate concurrence, we respectfully submit that this

may not be required. The reasons behind these are as follows:

a) The agreement has not actually allowed the establishment of

foreign military bases in the Philippines; and

b) Secondly, we are, in fact, merely implementing existing law

and policy as well as facilitating the undertaking of series of activities

10

COMMITTEE ON FOREIGN RELATIONS Caturla II-1 December 1, 2014 11:14 a.m. 3

which according to the Supreme Court are mandated under existing

agreements.

The EDCA also has very clear benefits for the Philippines in

addition to strengthening our defense capabilities. It also allows or

enhance interoperability with the defense systems of our security

partners. The approved activities will also generate economic

opportunities for our people in terms of employment and purchase of

local products, among others.

Particularly important is the humanitarian assistance and disaster

relief component, as the agreement will make readily available

critically needed HADR supplies and equipment. The value of this

equipment and assistance was underscored during post-Haiyan relief

activities when this US equipment played a major role in saving lives.

At the end of the day, total US government support is, as estimated at

around $143 million for the relief and recovery efforts.

Madam Chair, President Benigno Aquino III ratified the EDCA last

June 6, 2014. And the Agreement entered into force on June 25th

2014 in accordance with Article XII of the Agreement.

May I also point out, Madam Chair, that the United States also

considers the EDCA to be an executive agreement. Considering the

current regional security challenges, it is the primary responsibility of

government to safeguard our territorial integrity. While we are

adopting an all of government approach towards the goal of

11

COMMITTEE ON FOREIGN RELATIONS Caturla II-1 December 1, 2014 11:14 a.m. 4 strengthening our defense capabilities, we are also leveraging our

international partnerships including our enduring alliance with the

United States. In this effort we see the EDCA as an important

instrument that implements our country’s existing national policies

with full respect for the laws of our land.

We look to your active partnership and to the benefit of your

good counsel as we exercise the tools of diplomacy in pursuit of the

national interest.

I thank you, Madam Chair.

THE CHAIRPERSON. Thank you, Secretary del Rosario.

I would like to acknowledge with gratitude the arrival of Senator

Marcos and Senator Angara who are both Vice-Chairs of this

Committee.

May I just ask this question, Mr. Secretary. In the entire

Constitution, is there any mention of the phrase “executive

agreement”? I know since I studied in law school that the Constitution

mentions the word, “treaty,” mentions the phrase “international

agreement.” But I cannot forwards and backwards find the word

“executive agreement” in the Constitution. My implication, of course,

is if it is not there, it is not allowed.

MR. DEL ROSARIO. I think, Madam Chair, that it is not

mentioned in the Constitution. The executive agreement is not per se

mentioned.

12


THE CHAIRPERSON. Is not mentioned. So, if it is mentioned

at all in our jurisprudence, it must be because of the Supreme Court.

Since it is not a legal discussion per se, it is mostly a political

discussion on what our public think about the EDCA.

But still I will just go to one more point. The Constitution, Article

VII, Section 21 provides, “No treaty or international agreement shall

be valid or effective unless concurred in by at least two-thirds of all the

Members of the Senate.” That is the exact phraseology of our

Constitution. It begins with the negative notice that unlike the rest of

the Constitution which begins with positive pronouncements or

instructions, this one says, “No treaty or international agreement.”

Meaning that if there is any doubt, the doubt must be resolved against

the treaty, that at a very least is the meaning of that phraseology, “No

treaty or international agreement…” So, treaties are not allowed

unless they are concurred in by the Senate. But the term

“international agreement” seems to encompass the whole of God’s

creation. It appears to be the intention of the framers of our

Constitution.

What other instrument or document would fall under these

generic titles, a treaty and then international agreement? So, when it

says “international agreement,” it means conceivably documents like

the EDCA. It does not allow the treaty or something like EDCA to

become valid and effective unless concurred in by the Senate.

13


May I have your comment? Why should it use the word “treaty”

or “international agreement,” Why then it just use specific

classifications or types of documents?

MR. DEL ROSARIO. Madam Chair, I understand that there are

MOUs which we have entered into in the foreign service which do not

require such concurrence. This is an example that we wanted to bring

up.

THE CHAIRPERSON. Yes. Well, my comment to that is, that

all of these MOUs that are cited may be or executive agreements are

but the result of an executive order signed by the executive branch of

government. Does it necessarily bind the legislative branch or the

judicial branch of government just because in an executive order the

President said, “There shall be executive agreements pursuant to these

qualifications?” It seems difficult to argue that one branch of the

government has the power to interpret the Constitution for the two

other branches except the judiciary.

MR. DEL ROSARIO. I understand, Madam Chair…cpc

14

COMMITTEE ON FOREIGN RELATIONS M.R. CATADMAN III-1 December 1, 2014 11:24 a.m. 1

MR. DEL ROSARIO. …I understand, Madam Chair, that the

Supreme Court has already recognized the executive agreement in a

decision that it has rendered.

THE CHAIRPERSON. Yes. In fact, in several decisions, but I’m

going back to the Constitution itself, and I want to know from the

wording. Let me explain further like this. Our Constitution says, “No

treaty, no international agreement shall be valid and effective unless

concurred in by at least two-thirds vote of all the members of the

Senate. So this means, in the first place, that this is a prohibitory

provision. It prohibits something because it begins with a negative,

“No treaty...” It is prohibitory. Now, if we remember under Article 5

of the Civil Code, prohibitory laws acts that are violative of prohibitory

laws are not valid or effective. That is what our Civil Code provides.

Acts executed against the provisions of mandatory prohibitory laws

shall be void. We’re talking of a prohibitory law of the Constitution, a

prohibitory provision of the Constitution and our other book called the

Civil Code says, “An act executed against the provision of a prohibitory

law, that law shall be void,” therefore, since the law says no treaty or

international agreement shall be valid or effective without concurrence,

and we have now concurrence from the Senate, then any act pending

to forge the validity or the effectivity of such a law would be void,

according to Article 5 of the Civil Code.

15


MR. DEL ROSARIO. I am not a lawyer, Madam Chair, but my

own personal opinion is that the conflicting opinions that we are

discussing here appears to create a dilemma between what the

Constitution allows, and what the Supreme Court has ruled.

THE CHAIRPERSON. Yes, I agree with you.

MR. DEL ROSARIO. Yes.

THE CHAIRPERSON. I agree with the Secretary.

And one more thing I would like to raise is this, if the

Constitution says that without Senate concurrence, then the EDCA, as

one of the international agreements referred to by the Constitution, if

it cannot be valid and effective—supposed that the Supreme Court

rules on EDCA, I understand that the resolutions have rested, or that

the proceedings have been finished. Suppose that the Constitution

rules on EDCA, then it would be ruling on an international agreement

that has not been concurred in and, therefore, is null and void. We

would have a phantom document. It would not exist in constitutional

contemplation.

These are just intellectual excursions.

MR. DEL ROSARIO. I totally agree, Madam Chair.

THE CHAIRPERSON. Thank you, Mr. Secretary.

Do my fellow senators, including Senator Cayetano, have any

questions for the secretary? Otherwise, he is finished and we’ll go to

Dean Magallona who is against EDCA.

16


All right.

Thank you very much, Mr. Secretary. Thank you for your

courtesy.

MR. DEL ROSARIO. Thank you.

THE CHAIRPERSON. Dean Merlin Magallona, one of the

recognized experts in international law in Asia.

Please proceed, sir.

MR. MAGALLONA. Honorable Chair, Your Honors, members of

the Senate Foreign Relations Committee, with your permission.

Unfortunately, we have to begin with the premise that the EDCA

having entered into force as an executive agreement is now placed

beyond the reach of the Senate in the performance of its function to

give validity to EDCA as a treaty allowing foreign military presence.

Under this provision, I’m referring to Section 25, Article XVIII of the

Constitution. The fundamental law demands that foreign military

bases, troops, or facilities, to quote, “shall not be allowed in the

Philippines except under a treaty duly concurred in by the Senate.”

Under this constitutional mandate, Senate concurrence conferred on a

treaty of such nature becomes the constitutional device by which a

treaty in the nature of EDCA may be saved from Section 25, Article

XVIII, as a prohibition. Under the present circumstances, the Senate

is confronted with the reality that this constitutional mandate must

now apply as a prohibition in the absence of EDCA embodied in a

17


treaty duly concurred in by the Senate. Taking into account the legal

and policy infirmities of EDCA, what may assume pertinence is the

constitutional certiorari in Section 1, Article VIII of the fundamental

law which reads as follows, “Judicial power includes the duty of the

courts of justice to determine whether or not there has been a grave

abuse of discretion amounting to lack or excess of jurisdiction on the

part of any branch or instrumentality of the government.” Taking into

account the position of the Senate, I should like to ask the question, in

the event of the positive result in constitutional certiorari, may the

issue of expenditure of public funds be raised insofar as affected by the

illegality arising from lack or excess of jurisdiction on the part of the

Executive arising from a constitutional certiorari case? This may be―

concern the public funds that may be used in the administration and

management of EDCA on the basis of the fact that EDCA is enforced as

an executive agreement and is turned down during the constitutional

certiorari.

In the alternative, may the Senate inquire into the budgetarial

implications of the support for the management or administration of

EDCA in the Philippine side on the basis of the positive result of the

constitutional certiorari making this undertaking more effective by the

Senate forming a subcommittee for EDCA of the Senate Committee on

Finance. Even as we refer to the constitutional and legal status of

executive agreements in general, it remains undeniable and operative

18


that the conclusion of EDCA, as executive agreement, is in

contravention of Section 25, Article XVIII of the Constitution. The

force of this constitutional mandate as a prohibition should clearly

drive home the act of cartelizing EDCA as an executive agreement as a

circumvention of this mandate. …/mrjc

19

COMMITTEE ON FOREIGN RELATIONS CFDriz IV-1 December 1, 2014 11:34 a.m. 1

MR. MAGALLONA. …of this mandate. This conclusion flows

from the admission on the part of the Solicitor General in his oral

arguments before the Supreme Court that EDCA has already entered

into force as an executive agreement which necessarily implies his

admission as to the substantive content of that executive order

namely, that it intends and provides for the right of the United States

government to build structure, storage of weapons, defense supplies

and materials, stationing of military forces or troops and other

personnel, vehicles and presence of military aircraft, vessels and the

establishment of agreed locations in the Philippine territory.

In brief, this admission of EDCA as an agreement allowing what

is prohibited in Section 25, Article XVIII of the Constitution in the

absence of a treaty concurred in by the Senate is admission is per

force on behalf of the President.

One rationalization for avoiding Senate concurrence on the

required treaty and for escaping from constitutional prohibition has

been reported by GMA News Online of 26 November 2014, as

articulated by the Solicitor General before the Supreme Court in his

response to the question from Justice Marvic Leonen as to why EDCA

was not submitted to the Senate. The Solicitor General answered and

I quote, subject to his correction, “Because the President considered it

as an implementing agreement of the Mutual Defense Treaty and the

Visiting Forces Agreement.” The view that there is such a thing as an

20


implementing treaty is a wild invention. To the credit of the Solicitor

General, this desire is not his own. It sprung absurdly from the

ponencia in Nicolas versus Romulo which by the way it considers the

Visiting Forces Agreement as an implementing treaty of the Mutual

Defense Treaty combining this with the opinion of the Solicitor General

about EDCA as an implementing treaty this makes EDCA an

implementing treaty of an implementing treaty in the VFA. The

absurdity doubles itself but something more goes beyond the

absurdity. The ponencia in question distorts the interpretation of the

United States Federal Law on treaties on international agreements in

order to arrive at the desired conclusion that is, that the highly

subjective concept of an implementing treaty which is non-existent in

US jurisprudence nor in public international law as a legal consent.

This interpretation or distortion of US law is an attempt to correlate the

status of treaties under Section 2, Article II of the US Constitution

proving that treaties shall have the advice and consent of the US

Senate. With that of international agreements which are not treaties

at all as governed by the Case-Zablocki Act enacted by the US

Congress. This correlation is to the effect that international

agreements which are not treaties because they have not had the

benefit of advice and consent of the US Senate are required under the

Case-Zablocki Act to be transmitted by the US Secretary of State to

the US Congress.

21


Under the Case-Zablocki Act, therefore, in relation to the US

Constitution, an international agreement is either a treaty or not a

treaty. If it is not a treaty, then it is required to be transmitted to the

US Congress by the US Secretary of State pursuant to the Case-

Zablocki Act. Hence, the fact that an international agreement is within

the coverage of the Case-Zablocki Act as in the case of the VFA,

testifies that it is not a treaty. Thus the Case-Zablocki Act provides

insofar as pertinent as follows, and I quote, “The Secretary of State

shall transmit to the US Congress the text of any international

agreement other than a treaty.” I repeat, other than a treaty, to

which the United States is a party as soon as practicable after such

agreement has entered into force with respect to the United States,

but in no event later than 60 days thereafter.” That is about the

pertinence of the Case-Zablocki Act. The VFA was transmitted to the

US Congress by virtue of this provision on account of the fact that it is

not a treaty pursuant to the terms of this Act. And this appears to be

the only factor for the VFA being governed by this Act. But in the mind

of the ponencia, the VFA became an implementing agreement and this

is regarded as the reason for being subject to the Case-Zablocki Act.

Then the ponencia continues the distortion of this Act as follows, and I

quote: “Notice can be taken of the internationally known practice by

the United States on submitting to its Senate for advice and consent

agreements that are policymaking in nature, with policymaking in

22

COMMITTEE ON FOREIGN RELATIONS CFDriz IV-1 December 1, 2014 11:34 a.m. 4 nature underscored. Whereas, those that carry out for further

implementation of these policymaking agreements are merely

submitted to Congress under the provisions of the so called Case-

Zablocki Act within 60 days for ratification, (with the word ratification

underscored). Contrary to the ponencia’s claim, never is there in the

contemplation of the US jurisprudence nor in international law the

categories of treaties into policymaking treaties and implementing

treaties which is the source of the theory that is being applied to

EDCA. The ponencia is an obvious falsity when it asserts that

agreements transmitted to the US Congress for the purpose of

submitting them for ratification falsely implying that the Case-Zablocki

Act is a means of ratifying international agreements for purposes of

making them a treaty. It is not very clear where this wild invention

came from. But I trust that the present membership of the court will

not in any way follow the footsteps of this ponencia.

At any rate, dubious as its status is in US law, no possible

ground is being advanced as to why this implementing treaty theory

should be applied in the interpretation of the Philippine Constitution.

The thesis that the EDCA is an implementing agreement of the MDT

does not hold because of their qualitative differences in the governing

constitutions marked by the prohibition in 1987 Constitution against

foreign military presence in the Philippines in contrast to the presence

in Philippine territory of the two largest US military bases in the world

23

COMMITTEE ON FOREIGN RELATIONS CFDriz IV-1 December 1, 2014 11:34 a.m. 5 during the regime of the 1935 Constitution by which the MDT received

concurrence by the Senate at that time. The discontinuity of the MDT

and EDCA is further pronounced by the fact that the prohibition on

foreign military presence in the present Constitution…/cfd

24

COMMITTEE ON FOREIGN RELATIONS PLMANUEL V-1 December 1, 2014 11:44 a.m. 1

MR. MAGALLONA. … in the present Constitution as applied to

EDCA was introduced in the words of the Constitution, and I quote:

“After the expiration in 1991 of the agreement between the Republic

of the Philippines and the United States of America concerning military

bases.” On the whole, the MDT and EDCA are radically separated by

the fundamental change of circumstances characterized among other

confirmations by the end of the Cold War. Even the main orientation of

the MDT as to its object and purpose has moved away from the

struggle against communism, to war against terrorism to containment

of China under the present strategic guidance on the Pentagon.

It appears that the only thing unchanging is the highly

subjective theory of EDCA as the implementing treaty of the Mutual

Defense Treaty. In the end, the admission by the government that

EDCA is an agreement allowing foreign military presence gives

confirmation that EDCA is governed by Section 25, Article XVIII of

the Constitution, in particular, applying as a prohibition. As for proof

that its substantive content falls within the constitutional

prohibition, a reading of the text of the executive agreement

entitled “EDCA” will clearly show as evidence.

Let me now go into the MDT as the “bible” of US-Philippine

military alliances. Insofar as MDT supports to exercise the right of

individual or collective self-defense between the United States and

25


the Philippines is contrary and incompatible with the exercise of the

right of self-defense under Article 51 of the United Nations Charter.

Under the Charter, the state under illegal attack is the only entity

qualified to exercise the right of individual self-defense, but under

the MDT the Philippines acquires the right to defend the United

States under attack even if the Philippines is not under attack. And

the United States has the right to defend the Philippines if under attack

even if the United States itself is not under attack.

To repeat, the United Nations Charter limits the right of

individual self-defense to be exercised by the state under illegal

armed attack and only in the case of an actual armed attack against

itself without precluding therefore any other form of attack which

might be anticipatory. Hence, there exists a conflict between the

obligations of the Philippines under the MDT and its obligation under

Article 51 of the United Nations Charter. In which case, Article 103 of

the UN Charter becomes applicable. This provides, “In the event of a

conflict between the obligations of the Members of the United

Nations under the present Charter, and their obligations under any

other international agreement—I am sure this includes the MDT—

their obligations under the present Charter shall prevail.” This article

of the UN Charter has been rendered imperative and it is considered

by commentators as the supremacy clause of the United Nations

Charter. If the use of force deviates from the requirements of the UN

26


Charter as set forth in Article 51, such as the use of force

contemplated in the MDT, it may fall under the prohibition of the

threat or use of force under Article 2, Paragraph 4 of the Charter. It

provides as follows: “All Members shall refrain in their international

relations from the threat or use of force against the territorial integrity

or political independence of any state or in any manner inconsistent

with the purposes of the United Nations such as the illegal use of

force purporting to be self-defense under Article 51.”

In consideration of these factors, instead of regarding the MDT

with biblical awe, we should examine it instead from the viewpoint

of the dubious status in International Law and in the perspective of

its encroachment into our national sovereignty, not from the angle

of the so-called “implementing treaty” theory.

May I invite Your Honors to the theory of state responsibility

under International Law? Of course, the essence of the EDCA is the

rotational presence of weapons—the operative weapons of the

United States, in particular in terms of aircraft and super vessels

such as the USS Washington that can accommodate hundreds of

tons.

In this case, let me invite your attention to the fact that the

EDCA is merely an implementation of the strategic guidance that is

now being enforced by the Pentagon. And may I take you to the

provision of the strategic guidance with respect to nuclear

27


weapons, the use of which is identified as one of primary missions

of the United States Armed Forces under the strategic guidance

and, of course, there is the prospect that it may be implemented

through the EDCA right in the Philippines. The strategic guidance

says, and I quote, “The United States will maintain a safe, secure

and effective arsenal of nuclear weapons.” To continue, I quote, “We

will field nuclear forces that can under circumstances confront an

adversary with the prospect of an acceptable damage.” It is

possible that our deterrence goals can be achieved with smaller

nuclear forces. This would reduce the number of nuclear weapons in

our inventory and as well as their role in the US National Security

Strategy. May this be implemented by the rotational basis under the

EDCA? And we will never know because the United States

government has been pursuing the issue of neither confirm or deny

with respect to the question as they have nuclear weapons in

particular places.

However, last year, published in a mainstream newspaper in the

Philippines is the disclosure of Archives of the United States

Department of State and what was disclosed by the United States

Department of State was a folder entitled “Nuclear Weapons in the

Philippines.” And, of course, we can identify the newspaper file and a

copy of which I might make public--of course, at least have been

made public.

28


Now, of course, we have to see this nuclear weapon question in

the light of the constitutional provision which prohibits nuclear

weapons within Philippine territory. Has our Department of Foreign

Affairs and Department of Defense considered the prospect that the

nuclear weapons as it was done during the time of Nixon that the

Joint Chiefs of Staff had to hide the nuclear button because they

found that President Nixon was becoming mad and it might therefore

press the nuclear weapon? May this be—danger come to us but we

cannot consider the negative or positive prospect with respect to

nuclear weapons especially under the regime of a …. /plm

29

COMMITTEE ON FOREIGN RELATIONS Sglrobles VI-1 December 1, 2014 11:54 a.m. 1

MR. MAGALLONA. …under the regime of a US mad president

which is possible.

The other question that I should like to raise, Your Honor, is the

question of state responsibility in international law. We, of course,

easily recognized that the rotational presence of the United States

forces by reason of EDCA would be in terms of war materials and

weapons. There is no assurance under the EDCA even if we go

through it wholly that the Philippines is assured that the rotational

forces in the Philippines would in any way avoid aggression with

respect to the neighboring countries, in particular with China, in

relation to which the Pentagon is now developing weapons aimed at

the containment of China.

What remains, therefore, is that in case aggression or breaches

of peace may be committed by the United States forces that are on

rotational presence in the Philippines, what assurance do we have that

we will not ... of state responsibility in the sense that we will be

implicated as having committed internationally wrongful conduct

committed by the United States forces of war.

And lastly, Your Honor, general international law has absorbed

the general assembly declaration defining aggression.

And in the definition of aggression, there is one item of particular

interest to this hearing, Your Honor. It says that it constitutes

aggression for a state to allow its territory to be used by another state

30

COMMITTEE ON FOREIGN RELATIONS Sglrobles VI-1 December 1, 2014 11:54 a.m. 2 in committing aggression against another state.

By the way, this item of the definition of aggression has now

been made an integral part of the definition of the crime of aggression

under their own statute of the international criminal court. I wonder,

this is of interest to the entire nation, is the EDCA an assurance to us

that the armed forces bases to be used by the Americans will not be

covered by this item of the definition of aggression which now

constitutes general international law?

Thank you, Your Honors.

THE CHAIRPERSON. Thank you very much, Dean Magallona,

and please accept the Chairperson’s personal professions of

appreciation for your creativity in language otherwise unknown in the

legal profession.

Ganito lang, tatlong punto lang: una, ang sabi ng ating Saligang

Batas, walang kasulatan o kasunduan ang Pilipinas at ang ibayong

bansa na hindi dumaan muna sa Senado. Kaya ayaw nilang dumaan

sa Senado dahil siguro sa tingin nila ayaw ng taong-bayan dahil ang

mga pulitiko inuulit lang ang kagustuhan ng taong-bayan o baka

talagang talo sila, on the merits, sa mga pagrarason. Basta ayaw

nilang makisama ang Senado. Na sinabi na ng ating Saligang Batas na

may papel ang Senado doon dahil hati ang Presidente at ang Senado

sa ating foreign policy power.

Mayroong mga bansa na ang poder na iyon, ang kapangyarihan

31

COMMITTEE ON FOREIGN RELATIONS Sglrobles VI-1 December 1, 2014 11:54 a.m. 3 na iyon ay para lamang sa Presidente. Pero dito sa ating bansa, hati

sila, ang Presidente at ang Senado.

Ngayon, dito sa EDCA gusto na mangyari ng Malacañang ay sila

lang ang may-ari ng EDCA. Walang pakialam ang Senado. Kaya tayo

mayroong meeting ngayon.

Ngayon, ang una kong pagtatanong ay ganito, ang lusot ng

Malacañang ay hindi naman ito treaty. Hindi naman ito kasunduan o

kasulatan, kung hindi ito ay executive agreement lamang. Sinabi na

sa atin kanina ng ating dalubhasa na walang pagsasalitang “executive

agreement” sa ating Constitution. Mayroong pagsasalitang “treaty,”

mayroong pagsasalitang “international agreement” na kailangan

pareho ay dumaan sa Senado. Pero ang salitang “executive

agreement,” wala doon sa ating Saligang Batas kaya unang-una, saan

nanggaling iyon? At pangalawa, kung nandiyan na rin lang iyan, hindi

ba iyan naibago noong 1987 nuong nagkaroon tayo ng bagong

Constitution? Palagi na lang ang rason ay dati na iyan. Dati man iyan,

hindi ba naibago iyan noong 1987 Constitution? Pangalawa, ngayon,

wala silang rason kung bakit salungat sila sa Constitution. Na ang sabi

ng Constitution, ang kapangyarihan tungkol sa foreign policy ay hati

ang Presidente at ang Senado. Ngayon, ang gusto ng Presidente siya

lang. Tatanggalin niya ang Senado. Paano niya magagawa iyon?

Nagimbento siya, sabi niya kasi ito executive agreement, na wala

naman sa ating Saligang Batas. Nag-imbento siya ng sarili niyang

32

COMMITTEE ON FOREIGN RELATIONS Sglrobles VI-1 December 1, 2014 11:54 a.m. 4 salita.

Pangalawa, sinasabi nila ngayon, “Ah, ang executive agreement,

iyan ay kung sinusunod lang niya iyong nauna nang agreement niya.

Pagkatapos ngayon sinasabi nila itong EDCA kasunod lang naman ayon

sa Visiting Forces Agreement o kasunod lang naman ayon sa Mutual

Defense Treaty. Mayroon nang nauna at ito ay kasunod lang. Para

bagang pag nagpasa ng batas ang ating Senado, mayroong

implementing rules and regulations, iyon ang ibig nilang sabihin.

Basta ang panibagong kasulatan na iyan o kasunduan na iyan ay nag-

implement lang noong naunang treaty, iyan ay parang implementing

rules and regulations. Tinatawag namin iyan na “executive

agreement” kaya pwede iyan.

Ngayon, ang pagtatanong natin diyan ay ganito, sino ngayon ang

magsasabi kung implementing lang ang treaty na iyan o panibagong

treaty iyan? Ang sabi ng Malacañang, sila lang raw ang magsasabi.

Sila na nga ang nagkamkam ng kapangyarihan, sila pa ang magsasabi

ngayon kung kailan at ano ang makamkam nila. Hindi yata maganda

iyon. Dahil ang ating gobyerno, tatlong sangay iyon—judicial,

executive, legislative, ay bakit sila lang? Hindi naman iyon ang

hangarin ng ating Saligang Batas. Hindi naman nakalagay na basta

tungkol sa foreign policy, mag-isa lang ang Presidente na mag-action

doon. Nakalagay nga nang maliwanag, sinulat talaga na, “No treaty or

international agreement shall be valid and effective unless concurred in

33

COMMITTEE ON FOREIGN RELATIONS Sglrobles VI-1 December 1, 2014 11:54 a.m. 5

by at least two-thirds of all the members of the Senate.” Kaya tingnan

mo, “No treaty, no international agreement.” Ang ibig mong sabihin

ang EDCA hindi international agreement? Aber?

O, hinahamon ko iyong mga nagtatanggol ng EDCA na iyan.

Nakalagay sa ating Saligang Batas, “No treaty or international

agreement.” O kung hindi treaty ang EDCA, ano iyon? Hindi iyan

international agreement din? Kaya anong klaseng hayop iyon? May I

ask?

Dean Magallona. Dean Magallona is an expert in international

law. In fact, you have your own document here, “A Critical Review of

the EDCA.” Under the Vienna Convention on the Law of Treaties, is

there mention of executive agreement and any definitions or criteria, if

any?

MR. MAGALLONA. Your Honor, may I define a dilemma for the

Senate?

THE CHAIRPERSON. Yes, please.

MR. MAGALLONA. Well, it’s true that we have the mandate of

the treaty clause of the Constitution in Section 21, Article VIII. It

says, “No treaty or international agreement shall be valid and effective

law unless concurred in by at least two-thirds of all the members of the

Senate.”

The problem is, may the Senate act on a treaty except when it is

transmitted by the President with the instrument of ratification signed

34

COMMITTEE ON FOREIGN RELATIONS Sglrobles VI-1 December 1, 2014 11:54 a.m. 6 by him? If the President before refuses, and under the circumstances

the President certainly will refuse for the reason that it has already

been inoperative as an executive agreement and, certainly, we cannot

expect the President under the circumstances to transmit, EDCA to the

Senate for concurrence. And, certainly, the Senate may not be in the

position to express concurrence unless the transmission of the treaty

with the instrument of ratification signed by him—with the request that

the Senate express…/sglr

35

COMMITTEE ON FOREIGN RELATIONS CDAstrero VII-1 December 1, 2014 12:04 p.m. 1 MR. MAGALLONA. …that the Senate express concurrence on

EDCA. And so the problem of the Senate is, may it act in concurrence

of a treaty without transmission from the President and—

THE CHAIRPERSON. It will be a treaty that does not exist?

MR. MAGALLONA. And especially in the present circumstances

where the EDCA is already enforced as an executive agreement and I

suppose that this kind of device is really intended to escape EDCA from

the prohibition under the Constitution.

THE CHAIRPERSON. Absolutely. Kaya iyan pinalagay doon sa

EDCA. This document will take force on so and so date after the

signature of the officials mentioned here para mawalan na nga kami ng

bisa. Kaya kami naman sa Senado, hindi naman sa gusto kaagad hindi

magsang-ayon sa presidente o kaya obstructionist kami, kung hindi,

gusto namin bigyan naman kami sana ng sapat na respeto. Eh,

hinahati ang kapangyarihan sa amin ‘di dapat gampanan namin ang

aming kalahati. Hindi na ang executive branch lang ang kumikilos

doon.

Ngayon, question diyan talaga, is EDCA really in force? Can you

force the Philippines to comply with certain duties, obligations or

responsibilities under an international agreement without following the

protocol instituted in the Constitution for these procedures? Can you

act outside of the Philippine Constitution? Dahil iba ang sinasabi ng

36

COMMITTEE ON FOREIGN RELATIONS CDAstrero VII-1 December 1, 2014 12:04 p.m. 2 ating Saligang Batas, ah. Ay bakit tayo ngayon gumagawa ng paraan

na hindi ayon sa ating Saligang Batas at sinasabi nating tama ang

ginagawa natin? Ang maliwanag dito ay ganito, ang sabi ng ating

Constitution, “No treaty or international agreement shall be valid and

effective.” Sabihin ngayon ng Malacañang, “effective na,” “epektibo

na,” “already in force na ang EDCA.” Pero what about the word

“valid”? Can an invalid document be effective? Of course not. Any

person with brains at elementary level can answer that question. That

is the reason why we are holding this hearing. At first, out of courtesy

to the judicial branch of our government, we did not want to institute

our proceedings together with the judicial proceedings that seem to be

ongoing at that time. But I understand from the exchanges during the

deliberations that it has become relevant as to whether the Senate has

taken a position, if so what it is. I will limit myself to this comment

and we’ll ask my fellow senators if they wish to ask a question.

From Dean Magallona? Otherwise, we shall go on to Secretary

Gazmin and then after that to Senator Saguisag.

Secretary Del Rosario.

MR. DEL ROSARIO. Madam Chair, may I be allowed to correct

myself in terms of a question that you had asked of me and I think I

gave you the wrong answer?

THE CHAIRPERSON. Yes, please, go ahead.

37

COMMITTEE ON FOREIGN RELATIONS CDAstrero VII-1 December 1, 2014 12:04 p.m. 3

MR. DEL ROSARIO. The question was, if I recall correctly, is

there any mention of an executive agreement in the Constitution?

THE CHAIRPERSON. Yes.

MR. DEL ROSARIO. And I said that to my knowledge, there

was no—

THE CHAIRPERSON. No.

MR. DEL ROSARIO. I stand corrected on that, Madam Chair.

On Article VIII of the Constitution, Section 4, it says that all cases

involving the constitutionality of a treaty international or executive

agreement—So, there is a mention of an executive agreement in the

constitution. And additionally, if I may—

THE CHAIRPERSON. May I have the number please of the

Article?

MR. DEL ROSARIO. It’s Article VIII…

THE CHAIRPERSON. On the judiciary.

MR. DEL ROSARIO. ...on the judicial department, Section 4,

Paragraph 2.

THE CHAIRPERSON. Yes, please, go ahead.

MR. DEL ROSARIO. I think the point that I’m trying to bring

out, Madam Chair, if you’ll allow me is there is a mention of an

executive agreement there.

38

COMMITTEE ON FOREIGN RELATIONS CDAstrero VII-1 December 1, 2014 12:04 p.m. 4 THE CHAIRPERSON. This provision is an old timer. It’s been

in our Constitution a long, long time. It is entirely possible that those

who wrote it were aware of the concept of an executive agreement but

not of the present attitude and mindset of the framers of the new 1987

Constitution. And besides, this provision concerns the jurisdiction of

the Supreme Court. It has no mention of any powers to be derived

from the mere mention of the words that are enumerated here.

MR. DEL ROSARIO. If I may?

THE CHAIRPERSON. I was actually referring to any mention of

an executive agreement in the sense that there is a definition of what

an executive agreement is, that there are criteria set on what is an

executive agreement and when can it take place.

MR. DEL ROSARIO. You’re correct, Madam Chair.

May I bring up another point, Madam Chair?

THE CHAIRPERSON. Yes please.

MR. DEL ROSARIO. There was a question as well on who

determines whether an agreement is a treaty or an executive

agreement? I believe that was brought up earlier.

THE CHAIRPERSON. Yes.

MR. DEL ROSARIO. Under Executive Order 459, the Executive

Order, Madam Chair, recognizes DFA’s role to determine whether or

not an agreement is a treaty or an executive agreement and I think

39

COMMITTEE ON FOREIGN RELATIONS CDAstrero VII-1 December 1, 2014 12:04 p.m. 5 the Supreme Court has recognized this in the case of Pimentel versus

the Executive Secretary.

THE CHAIRPERSON. Yes, that is correct. But I was thinking of

the tricameral branches of our government and I was saying that it’s

the executive branch who issued executive order. In the executive

order, it gives itself, through the Department of Foreign Affairs, certain

powers. That cannot bind by any means the other two branches of

government. It can bind the executive branch.

Is there any other question?

Senator Cayetano.

SEN. P. CAYETANO. Madam Chair, no question. I just would

like to put on record that I am happy to be educated by my former

professor, Dean Merlin Magallona. It has been very interesting and

informative for me. I felt like a student again but, thankfully, you will

not ask me to stand up and recite although I took notes and I think I

would do a good summary.

Thank you.

THE CHAIRPERSON. Specially Case-Zablockie. The Case-

Zablockie is completely irrelevant to our case.

Well, thank you very much, Dean Magallona.

And now, let me call the Secretary of National Defense,

Secretary Voltaire Gazmin.

40

COMMITTEE ON FOREIGN RELATIONS CDAstrero VII-1 December 1, 2014 12:04 p.m. 6 MR. GAZMIN. The Honorable Miriam Defensor Santiago, Chair

of Foreign Relations Committee, the distinguished members of the

Committee, ladies and gentlemen.

It is the primordial duty of the Armed Forces of the Philippines to

defend the Philippine territory and sovereignty. It is, therefore, our

fundamental task to prepare as best as we can for any eventuality. As

Secretary of National Defense, as I had practiced in the various

positions I held in my career in the AFP, I have focused my efforts in

preparing our troops at the highest level and implement all programs

that would enable our troops to perform their mandate with the least

cost of lives. It cannot be denied that we have experienced a rising

level of tension in relation to our maritime affairs. Exercising the

principle of self-help, your defense and military establishments have

embarked on a reenergized AFP Modernization Program that holistically

seeks to address all security issues whether external or internal,

traditional or non-traditional.

May I take this opportunity to reiterate our most profound

gratitude for the leadership and support of President Benigno S. Aquino

III and the legislature in providing substantial budgetary support for

the AFP Modernization Program. Historically, this has been the

greatest financial budgetary support received by the AFP. It is

unfortunate, however, that our starting point for the modernization

41

COMMITTEE ON FOREIGN RELATIONS CDAstrero VII-1 December 1, 2014 12:04 p.m. 7 program of the AFP is not at all good. We need sufficient time to be

able to effectively plan and implement the procurement of the defense

equipment that would enable the AFP to provide credible defense for

sure. As it is acknowledged…/cda

42

COMMITTEE ON FOREIGN RELATIONS JADelaCruz I-2 December 1, 2014 12:14 p.m. 1

MR. GAZMIN. …As it is acknowledged that there are present

gaps in our capabilities, I must, however, assure all that your AFP

despite any lack in equipment continue to remain steadfast in its

commitment to fight for and protect the Filipino people.

In view of the foregoing, a more effective and efficient

implementation of our current defense cooperation practices with the

United States will definitely serve our security interests. Under the

Mutual Defense Treaty of 1951, it is already an established policy that

the Philippines and United States obliged each other to develop their

individual and collective capacity for mutual defense. This policy of

mutual capacity building was reaffirmed in the Visiting Forces

Agreement of 1998 where joint training exercises and activities, with

approval of the Philippine government, were allowed to be temporarily

implemented within the Philippine territory. It is our humble

understanding that the conduct of joint training exercises between the

Philippines and the US already stand as an established defense policy.

May I be allowed to contextualize how these training exercises

are planned and implemented on a regular basis? Every year, the

Mutual Defense Board and the Security Engagement Board comprising

of AFP and US Pacific Command officials discuss and agree on the

training exercises and activities to be conducted in the following year.

During the planning of these activities, various practical and

43


operational considerations arise. Among the many are: Where will

these troops stay? Which training structures such as firing ranges and

rappel towers will be needed? When will the visiting aircrafts and ships

arrive? Construction of structures that will address these practical and

operational questions will then facilitate the conduct of training

exercises. Other questions pertaining to pre-positioning will include:

What would be used for the training exercises? Where do we store

them? Will they be needed in the next training exercises? Based on all

these, it is our position that the construction and the pre-

positioning activities, as provided under the Enhanced Defense

Cooperation agreement are operational matters and necessary

details in the conduct of training exercises. Therefore, EDCA

with greater clarity addresses the operational requirements for

a more effective implementation of the exercises.

It bears stressing that the AFP modernization program will

benefit from EDCA. Under the revised AFP Modernization Law, one of

the major components of the modernization program is bases

development. We will plan for the construction of structures to be built

under EDCA that would also complement the modernization program.

Through this, we will maximize the budget provided to the AFP from

Philippine funds for the procurement of modern defense equipment.

44


We also envision EDCA to be able to provide greater training

opportunities for our AFP including our pilots and navy men who will be

able to familiarize themselves with modern technology so that when

our own modern defense equipment eventually arrive, the AFP will be

hitting the ground running already equipped in significant training

which use similar modern equipment.

Under EDCA, we will also synchronize the conduct of joint

exercises and activities in order to address our present capability gaps

in maritime domain awareness and maritime security and humanitarian

assistance and disaster relief.

In closing, we recognize that the circumstances we find ourselves

in are not ideal. We must hasten, therefore, our own modernization

program, at the same time strengthen our partnership because we

must do what we can.

Thank you, Madam Chair, for this opportunity.

THE CHAIRPERSON. Thank you too.

Isang tanong lang: Halimbawa, sa West Philippine Sea mayroong

Pilipino na barko, civilian o military na binaril ng Intsik. Ano ang

gagawin ng Amerika? Basta nagbarilan sila.

MR. GAZMIN. Kasama ho sa agreement natin na mahihila natin

ang Amerikanong sumama sa away kung ito ay nangyari.

45


THE CHAIRPERSON. Ano ho ang ibig sabihin? Pag binaril sila’t

nag-report kaagad in a matter of--under an hour, will the Americans

automatically come to the aid of the Philippines in the sense that they

would send aircraft or sea craft to defend and possibly even to shoot at

the Chinese?

MR. GAZMIN. It goes through a process, Madam Chair.

THE CHAIRPERSON. By tht time baka lumubog na iyong

barko. Ang gusto natin ay iyong kaagad-agad na mayroon naman

tayong maasahan na magtatanggol sa atin. Ano ho ang proseso? How

much time will it take, will those processes take?

MR. GAZMIN. Mahaba ho iyong proseso dahil it will go through

a constitutional process.

THE CHAIRPERSON. So it will not come immediately to the aid

of the Philippines. Is that a fair statement? Hindi kaagad-agad babarilin

ng Amerika. Kasi ang hindi maintindihan ng ating madla ay kung ano

ang mangyari sa atin, ano ang gagawin ng Amerika? Sila ba ay mag-

aaksyon na para bang sila na rin ang natamaan o laban na rin sa

kanila ang ginawa na iyon o maghintay muna sila, mayroon pa silang

mga meeting at mga coordination?

MR. GAZMIN. Ang EDCA naman ay nasisilbing deterrent para

hindi gawin noong Intsik iyong gagawin nila sa Pilipinas.

46


THE CHAIRPERSON. So that is only a hypothetical line of

defense. We are just hoping in our hypothesis that they will not shoot.

It is the shooting where we are afraid of. So suppose they shoot us

anyway, whatever their pretext might be: illegal fishing, poaching,

unprovoked aggression, etcetera.

MR. GAZMIN. Kinakailangan hong dumaan sa kanilang

constitutional processes iyong pangyayari bago sila makialam.

THE CHAIRPERSON. That’s under the Mutual Defense Treaty.

Noon pa iyong 1951.

MR. GAZMIN. Opo.

THE CHAIRPERSON. Hanggang ngayon ganoon pa rin ang

Amerikano. “We have to go through our constitutional processes,” ibig

sabihin dadaan pa sila sa Kongreso nila, kukuha pa sila ng sang-ayon

ng kanilang Kongreso. Hindi basta-basta mag-o-order lang ang

Presidente nilang bombs away. So kung ganoon iyon, matatagalan

muna iyon bago tayo magkaroon, kung mayroon man, ng tulong galing

sa Amerika. Iyon ang gustong malaman ng ating puliko kasi. Ano ang

mapapala natin sa EDCA? Iyon ba, pag inatake tayo ng Tsina, kaagad

atakihin din sila ng Amerika na para na rin ang Amerika ang inatake?

And the answer is that it will not automatically come to the aid of the

Philippines except until after constitutional processes of America have

been complied with.

47


MR. GAZMIN. That is right, Your Honor.

THE CHAIRPERSON. Senator Marcos.

SEN. MARCOS. Thank you, Madam Chair. Just a quick question.

This is very much in relation to the question of the Chair. In your view,

sa inyo po, Secretary Gazmin, ano yung ibig sabihin nung sinabi ni

President Obama na hindi makakapangako ang Estados Unidos na

makipaglaban kahit na sino ang umatake sa Pilipinas? Because ang

nasabi mo kanina ay pagka may nangyari na ganoon, nagkaputukan,

ay mahihila natin ang Amerika para tayo ay tulungan. Ngunit sinabi

niya, maliwanag na maliwanag, that the United States cannot promise

that it will go to war if the Philippines is attacked. Kaya’t napuna ko rin

na sa inyong salaysay ay pinag-usapan lamang ninyo ay training at

saka pagpatibay ng ating mga AFP at saka iyong pampaganda ng ating

maritime security. Hindi natin napag-usapan kung ano ba talaga ang

inaasahan natin sa Amerika. Kaya’t doon sa sinabi ni President Obama

nung kanyang bisita rito, ano sa palagay ninyo ang ibig sabihin noon?

Na hindi makapangako ang Amerika na sila ay lalaban para sa Pilipinas

kung tayo man ay inatake?

MR. GAZMIN. Ang sabi po…/jadc

48

COMMITTEE ON FOREIGN RELATIONS Caturla II-2 December 1, 2014 12:24 p.m. 1 MR. GAZMIN. …Ang sabi po ni President Obama, ang

commitment ng US ay ironclad. Ibig sabihin ay matibay iyong kanilang

commitment sa atin. Ngayon, tayo ay naniniwala dahil ito ang

pinakamataas na Amerikanong nagsabi nito sa commitment na ito.

SEN. MARCOS. Matibay ang commitment. Ngunit, anong ibig

sabihin ng commitment na iyon? Ano ang naipapangako ng Amerika,

hindi lamang sa Mutual Defense Treaty, kung hindi pati na dito sa

EDCA na sila ay tutulong sa atin kapag nagkaroon ng giyera?

THE CHAIRPERSON. Please excuse me.

I remember that President Obama paid a state visit to Japan.

And then he was asked since there are certain islands of Japan, the

ownership of which is in dispute. He was asked, “Will the United

States go to war if the Japanese islands are invaded”? And they said,

“Yes.” And eventually he was asked, “Will the United States go to war

if the Philippines is invaded?” And they said, “No.” That’s on record.

SEN. MARCOS. Yes, Madam Chair. That is precisely what I am

alluding to. And I would like in the light of our examinations as to

whether or not the EDCA provides us additional security or strengthens

our commitments to one another vis-à-vis the United States and the

Philippines. I was asking what, in fact, is their interpretation, is the

Department of National Defense’s interpretation of these

pronouncements that President Obama made? And beyond that what

49

COMMITTEE ON FOREIGN RELATIONS Caturla II-2 December 1, 2014 12:24 p.m. 2 we have in the EDCA, as to what exactly the response of the United

States will be should we find ourselves in a shooting war.

MR. GAZMIN. Well, right now, Your Honor, we use EDCA as a

deterrent to any threat to our security. As we are using this, we

continue to fill in the gaps to our modernization program.

SEN. MARCOS. A deterrent. Ibig sabihin na parang hindi

naman nananakot o nagsasabi na “Huwag kayong lumaban sa amin

dahil lalabanan namin kayo.” Sabi sa atin, “Hindi kami lalaban para sa

Pilipinas.” So, paano magiging deterrent iyon? Dahil sasabihin ng

kahit sino “Paputukan nga natin iyang barko ng Pilipinas.” Hindi tayo

matatakot dahil sinabi na ng Amerika hindi naman sila makikipag-

giyera para sa Pilipinas. So, that’s not a deterrent. Why will an

aggressive power have second thoughts or be afraid of attacking us

when nobody is going to come to defend us except our own armed

forces?

MR. GAZMIN. With the deterrence na nangyayari nga ngayon,

kita niyo, hindi ho tayo inaatake doon sa ating pag-resupply nung ating

mga tropa sa Ayungin Shoal although we have skirmishes but not

caused a shooting war.

SEN. MARCOS. Thank you, Mr. Secretary.

I think that is due to the bravery and skill of our own

servicemen. I don’t think the Americans played a part in that. But

never mind, if that is your interpretation.

50

COMMITTEE ON FOREIGN RELATIONS Caturla II-2 December 1, 2014 12:24 p.m. 3 Thank you, Madam Chair.

THE CHAIRPERSON. Senator Cayetano.

SEN. P. CAYETANO. Thank you, Madam Chair.

I was part of the Southeast Asian delegation that went to Japan

about a year ago. And part of the objective really was, of course,

Southeast Asian cooperation with Japan. And another part of it clearly

to me was the intention of Japan to make known to us their desire to

amend their Constitution or whatever legal instrument they had to

precisely allow them to defend themselves. Because after World War

II, my little understanding of their constitutional or whatever legal

instrument they have is that they are not allowed to raise their military

arms and the US is supposed to defend them. So that to me is a

biggest difference between the response of the President of the United

States to Japan because they have an agreement where the US will

step in precisely because they had to put down their military arms.

And the agreement that the US has with us is very different.

That is my understanding from my visit to Japan. And what I felt was

a very strong plea on their part to convince the Japanese citizens but

also their neighbors that this is something they have to do in light of

recent development.

My very quick question is, and I don’t mind if it’s answered in the

course of the discussion. When I quickly read the purpose and scope

of EDCA, and this is a follow-up to the Chairperson’s question on will

51

COMMITTEE ON FOREIGN RELATIONS Caturla II-2 December 1, 2014 12:24 p.m. 4

the US come and specifically defend us or will it attack China for that

matter. Under EDCA, the purpose and scope, Article I, it specifically

says that, “The parties separately and jointly will maintain and develop

the individual and collective capacity to resist armed attack.” So,

“resist armed attack,” I imagine is different from aggressive or an

active attack after we are attacked. Iba pa siguro iyon sa “resist.” So,

that doesn’t seem to be covered here.

The second is, it says, “That the parties shall help maintain and

develop additional maritime securities.” Again, that’s preventive--

and shall provide humanitarian assistance.” So, that means pagtinira

na tayo pagka nagkaroon ng away tutulungan lang nila tayo, wala pa

ring overt action so far from my reading.

And then finally, Paragraph 3, it says. “And shall provide such

other activities as maybe agreed upon.” So, that’s my question.

Where here does it specifically say that the US will come in, step in,

defend us or attack any other country that attacks us?

Thank you.

MR. BATINO. With the permission of the Honorable Chair.

Thank you, Madam Senator, for your question.

The purpose of EDCA, as it implements the Mutual Defense

Treaty is really confined with defense, with the concept of defense.

And it is through EDCA that we envision a greater preparation

52

COMMITTEE ON FOREIGN RELATIONS Caturla II-2 December 1, 2014 12:24 p.m. 5 mechanism for the mutual defense to be able to implement it

effectively in the future.

We agree with the observation of the Madam Senator that in

relation to EDCA, the focused concept is defense.

Thank you.

THE CHAIRPERSON. Thank you.

Let me now call on former Senator Rene Saguisag and after him,

Solicitor General Florin Hilbay.

MR. SAGUISAG. Magandang umaga po sa inyong mga Senador

at sa mga nandito sa hall na ito.

I don’t really have much to add to what I have heard. Gusto ko

lang muna hong bumanggit doon tungkol sa what just came up.

In August 1976, pinalakol ng mga North Koreans si Lieutenant

Bonifas sa 38th Parallel. Anong ginawa ng Kano? Natameme, wala.

In January 1968, kinuha ng North Korea ang USS Pueblo. One

year na na-detain. It was only towards Christmas of 1968 that the

Americans were released. Anong nagawa ng Kano? Tameme.

In 1941, we were one huge military base of the Americans.

When the Japanese came, well, it was good that Churchill called the

Filipino soldier as the finest warrior in the world. Kasi ho in the end,

ang kailangan diyan puso, puso ng Vietnamese, tinalo ang Frances,

tinalo ang Kano.

53

COMMITTEE ON FOREIGN RELATIONS Caturla II-2 December 1, 2014 12:24 p.m. 6 So, I agree with Lord Palmerston, “A country has no permanent

friends, no permanent enemies, only permanent interest.”

I happened to have seen again Pearl Harbor kahapon. Colonel

Doolittle led that Raid in Tokyo on April 18, 1942…cpc

54

COMMITTEE ON FOREIGN RELATIONS M.R. CATADMAN III-2 December 1, 2014 12:34 p.m. 1

MR. SAGUISAG. …on April 18, 1942, and after their successful

raid they run out of fuel. Saan pumunta? Sa China, where they were

protected by the Chinese.

Kaya dito po, ang main point lang ho natin, kung hindi natin

pagpipitaganan ang ating sariling Saligang Batas, who else will?

Kalilinaw ho sa Section 21 of Article VIII and Article XVIII, Section 25

that no foreign troops or facilities can be reinstalled here without the

concurrence of the Senate, which has an exalted role in foreign

relations shared with the President. Kaya dito ho kung hanggang hindi

ipapasa sa inyo, I hope it will be in some kind of suspended animation

until Mr. Aquino is persuaded to follow the constitutional institutional

arrangement. Iyon din hong duration may automaticity, 10 years

unless repudiated. It can go on and on. Kaya iyong apo ko hong

anim na taon lang mahilig magsundalo, may be involved in that

shooting war. And that is why it cannot be decided by one man alone

with one or two others. Noong panahon namin dito, the one who dealt

with us, Secretary Manglapus, a former colleague, a lawyer, there was

transparency and there was involvement. Hindi lang pinalagay ng

Malacañang na sila lang ho ang mga anak ng Diyos. Iyon ho ang

nangyayari dito. My good friends, Mr. Aquino, Mr. Gazmin, they

should involve those of us who would really feel the consequences. Ako

ho medyo last quarter na, last two minutes—baka nga ho nasa pre-

departure area na―but I care for my apos. I want them to have a say.

55


Dito echapwera kayong madlang people, kami lang ang mga anak ng

Diyos, iyon ho ang dating nito. I regretted to differ with my good

friend, the President, who I support, maybe 99 percent of the way, but

not here. His own mother called Senator Butz Aquino and me in 1991

to ask for our vote, and we told her gently, “Please ask us another.”

Dito din ho pinatawag kami ng anak ng July 1, kami ni Senator Bobby

Tañada, and same thing, we said, “You may not ignore the Senate.”

Pero ang lumabas ho sa diyaryo, “Huwag niyo nang pansinin iyong

dalawang matandang iyon baka interbyuhin niyo pa iyon, et cetera.”

Iyon nga ho pagpitaganan naman kaming medyo last two minutes or

pre-departure area na ho because as you may recall, I once worked

here, and I was very proud of our Senate which was not ignored by his

mother. Kaya dito ho ang pakiusap ko sa inyo siguro please pass a

Senate resolution na in this matter the Senate may not be ignored.

Maraming salamat po.

THE CHAIRPERSON. Thank you, Senator Saguisag.

If there are no other questions, we’ll call on Solicitor General and

after him, we will call on Atty. Harry Roque.

MR. HILBAY. Madam Chair of the Senate Foreign Relations

Committee, Honorable Senator Miriam Defensor Santiago, Senator Pia

Cayetano, Senator Ferdinand Marcos Jr., good morning.

56


We consider it a privilege to be invited to this morning’s session

on matters relating to the Enhanced Defense Cooperation Agreement

between the Republic of the Philippines and the United States.

In order to assist this honorable committee, if I may, I would like

to focus my statement on the constitutional law aspects of the EDCA,

especially those that were discussed in last week’s oral arguments

before the Supreme Court. In particular, we would like to restate the

government’s position on the nature of the EDCA as an executive

agreement.

The characterization of the EDCA as an executive agreement

rests on the concept that the President has the authority to enter into

implementing agreements pursuant to existing treaties. For purposes

of comparison, allow me to point out that the United States recognizes

four different types of international agreements: The first is the

treaty, which is an international agreement entered into by the

President with the advice and consent of the Senate;

The second is the congressional executive agreement which is an

international agreement entered into by the President with the

approval and authorization of the entire Congress;

The third is the executive agreement which is an international

agreement entered into by the President to implement a treaty. This is

the overwhelming number of agreements entered into by the United

States president;

57


The fourth is the sole executive agreement which is an

international agreement entered into by the President on his own

authority.

With the exception of congressional executive agreements,

Philippine practice coincides with these categories of international

agreements. This practice is found in Executive Order No. 459,

providing for the guidelines in the negotiation of international

agreements and its ratification.

The power of the Philippine president to enter into executive

agreements to implement existing treaties also finds support in

jurisprudence. For example, in the often cited case of Commissioner of

Customs versus Eastern Sea Trading, which describes executive

agreement as adjustments of detail carrying out well-established

policies.

Executive agreements are also explicitly recognized in our

present Constitution. In Article VIII, Section 5, paragraph 2(a) which

gives the Supreme Court jurisdiction over “all cases in which the

constitutionality or validity of a treaty, international or executive

agreement, is in question.”

There’s a reason why executive agreements are not found in

Article VIII or are found in Article VIII, not in Article VII, and that is

because only treaties and international agreements need concurrence.

Executive agreements found in Article VIII need no concurrence.

58


One may ask, in particular reference to the EDCA, what does this

executive agreement implement?

The answer, Madam Chair, is that the EDCA implements the

Mutual Defense Treaty of 1951 and the Visiting Forces Agreement of

1998.

The MDT has two important operative principles: the first is the

principle of defensive reaction in Article IV, which involves assistance

in the case of an armed attack on either of the parties in the Pacific

area.

The second is the principle of defensive preparation in Article II.

It states that in order more effectively to achieve the objective of this

treaty, the parties separately and jointly by self-help and mutual aid,

will maintain and develop their individual and collective capacity to

resist armed attack.

On the other hand, the Visiting Forces Agreement, another

treaty, specifically allows into our territory the presence of US troops

and personnel, equipment, materials, supplies, other property, vessels,

and aircraft. It is the position of the President, as commander-in-chief,

chief executive, and chief architect of foreign relations that the

principle of defensive preparation in the MDT and the Visiting Forces

Agreement constitute the totality of the licenses and authorizations

needed for the President to enter into the EDCA as an executive

agreement.

59


In material terms, what this means is that insofar as the

presence of U.S. troops, personnel, equipment, materials, supplies,

vessels, aircraft are concerned, the license has already been secured

through the VFA.

On the other hand, insofar as improvements and infrastructure

works on Philippine military bases and facilities are concerned, the

license has already been secured through the MDT…/mrjc

60

COMMITTEE ON FOREIGN RELATIONS CFDriz IV-2 December 1, 2014 12:44 p.m. 1

MR. HILBAY. … secured through the MDT. A significant aspect

of the Philippines objective of establishing minimum credible defense is

the improvement of our runways, barracks, ports and hangars. These

infrastructure improvements on Philippine military bases and facilities

jibe perfectly with the MDT’s concept of defensive preparation. It is,

therefore, consistent with the MDT’s defensive cooperation principle to

allow the US to assist the Philippine government in the improvement of

Philippine military bases and Philippine military facilities.

There are some who argued that the EDCA is a treaty and that it

cannot be couched as an executive agreement because it allegedly

allows foreign military bases and foreign military facilities.

First, Article V of the EDCA clearly states that the Philippines

shall retain ownership of and title to the agreed locations? And so by

clear consequence of law, these locations are not a situs of

extraterritoriaity. They are Philippine territory and Philippine property.

Second, the United States may be permitted by the Philippines to

construct and improve infrastructure in these locations. The United

States, however, will not be building in the concept of an owner. They

will be building for the Philippines. This is because under the EDCA,

“All buildings, non-relocatable structures and assemblies affixed to the

land in the agreed locations including once altered or improved by US

forces remain property of the Philippines.”

61


Third, the use and access of Philippine military bases will be

restricted and consistent with our national security interest for the

following reasons:

1) Such use and access will be for activities that must be

approved by the Philippines. No prior approval, no access and use of

areas and facilities;

2) Such use and access must be on a rotational basis

intermittent and temporary;

3) The government shall have access to the entire area of the

locations;

4) The government shall retain primary responsibility for

security with respect to the agreed locations;

5) The operational control of the United States is limited to

construction activities;

6) The agreed locations will be areas of joint use, consistent

with the concept of responsibility based on proportionate use of the

areas and facilities as stated in the EDCA.

These indicators are sufficient to make a reasonable person

conclude that the agreed locations are not, will not and cannot be

converted into foreign military bases or foreign military facilities. The

general features of foreign military bases, extraterritoriality, exclusivity

of use and foreign ownership are not present in these locations. And

so by their design or function or by the standards of ownership, control

62

COMMITTEE ON FOREIGN RELATIONS CFDriz IV-2 December 1, 2014 12:44 p.m. 3 and use, these agreed locations cannot be considered foreign military

bases or foreign military facilities. They are simply Philippine military

bases. We consider the defining characteristic of foreign military base,

the general ability of the foreign force to define within the base the

nature and the scope of the activities they wish to engage in. This

plenary ability, this general purpose license is found only in the former

Military Bases Agreement of 1947 which gave the United States, “the

rights, power, authority within the bases which are necessary for the

establishment, use, operation and defense thereof, or appropriate for

the control thereof, and all the rights, power and authority within the

limits of territorial waters and air space adjacent to or in the vicinity of

the bases which are necessary to provide access to them or

appropriate for their control.” This plenary ability, this general

purpose license is patently and demonstrably absent in the EDCA

because of the permission system in place for every activity that will

be undertaken by the US forces on Philippine soil as already mandated

by the Visiting Forces Agreement. The Philippines has control over

these locations not only because we own them but also because we

can set the parameters for their use and access by the United States

through the permission system that is in place. By this control test,

the agreed locations are decidedly Philippine, not foreign military

bases.

63


To conclude, the EDCA is an executive agreement because it

implements the principle of defensive preparation and cooperation

under the MDT and the specific rules of the VFA with respect to the

presence of troops, equipment, supplies, vessels and the aircraft. In

the view of the President, all the necessary licenses for entering into

the EDCA have already been secured. It does not involve foreign

military bases. It involves the improvement of Philippine military

bases.

Thank you, Madam Chair, Senators.

We hope that the short presentation has been of some assistance

to the Honorable Committee.

THE CHAIRPERSON. A lot of assistance.

The question is this: The Constitution prohibits foreign military

bases, troops and facilities unless the Senate has concurred. Ngayon

ang EDCA hindi binigay sa amin for concurrence. Bakit, hindi ba siya

base? Hindi ba siya troops, hindi ba siya facilities? Kung hindi man

siya, ano siya?

MR. HILBAY. Maraming salamat po.

Insofar as the EDCA is concerned, Madam Chair, iyon pong

presence ng troops has already been allowed under the VFA. And so

to the extent that the EDCA allows the presence of troops, it is

derivative of the VFA. In the matter of foreign military bases and

foreign military facilities, Your Honor, Madam Chair, the position of the

64

COMMITTEE ON FOREIGN RELATIONS CFDriz IV-2 December 1, 2014 12:44 p.m. 5 government, and we have given you the various tests that available, is

that, this does not involve the presence of foreign military bases or

facilities. This involves the improvement of Philippine military bases

and facilities. And so we have for ownership, we have control, we

have access. But we will allow them operational control for

construction activities which is only reasonable, Your Honor, because

they are spending their funds for the purposes of construction of

runways, ports, hangars and barracks.

THE CHAIRPERSON. You proposed several tests to determine

whether the so-called “agreed location” which is actually euphemism

for foreign military bases or at the very least, foreign facilities. You

argued that agreed locations are different from a foreign military base

or facilities. But you forgot to apply the test of geography, the most

basic test of all. Saan ba itong mga foreign military bases, troops and

facilities ng America? Nandito ba sa atin o doon sa kanila? Bakit hindi

nila ilagay doon sa sarili nila, bakit kailangan nasa atin? With the

globalization of warfare today, they can very well defend themselves

from their own homeland. Why do they have to use ours? That’s the

basic question. Hindi ba iyan patunay na tayo ay kasama lamang sa

tinatawag nilang strategic guidance? Strategic guidance, it’s a little

book that tells us what the Americans want to do militarily in the near

future. Ang nakasabi doon na gusto lang nila na kasali din ang

Pilipinas sa kanilang mga allied states kamukha ng Singapore at

65

COMMITTEE ON FOREIGN RELATIONS CFDriz IV-2 December 1, 2014 12:44 p.m. 6 Australia, na tayo’y isang grupo na leader natin ang America para kung

ano man ang ikinagalit ng China tayo muna ang tatamaan, hindi sila.

[laughter]

O pakisagot mo lang. What about geography? What about the

test of geography?

MR. HILBAY. Thank you, Madam Chair.

Our position, Your Honor, is that these agreed locations are so

called agreed locations, primarily because the Philippines will have to

agree and the United States will have to agree with respect to the

locations of these premises. And these premises will necessarily have

to be Philippine military premises because under the EDCA, it is only

Philippine military premises that can be determined as agreed

locations.

While it is true, Your Honor, that the United States has its

own…/cfd

66

COMMITTEE ON FOREIGN RELATIONS PLMANUEL V-2 December 1, 2014 12:54 p.m. 1 MR. HILBAY. … United States has its own independent interest

in coming over here, the position of the Philippine government is that

there is a convergence of interests here. Of course, the United States

would like to exert its might and project its force within Asia but we

in the Philippines, Your Honor, have our own, you know, independent

and more parochial concern which is modernizing the Philippine

military forces. And we would like to take advantage of the interest

of the United States so that we can improve our own facilities.

THE CHAIRPERSON. Thank you.

Are there questions from our panel? Senator Marcos.

SEN. MARCOS. Thank you, Madam Chair.

We’ve heard a lot this morning about the improvement of our

capabilities, the improvement of our readiness and it has been

proposed that that is the main purpose of the agreed locations to

improve our maritime security to help in the organization of our

military exercises together with the United States.

However, in Article 6 of the agreement of EDCA, it speaks mostly

of pre-positioning. And pre-positioning, I take to mean, is simply

the forward positioning of materiel so that when there is a

deployment in that part of the world, that this material did not

come from a distance far away in the United States. I am reminded

of the pre-positioned material that you see in a place like Hawaii

67

COMMITTEE ON FOREIGN RELATIONS PLMANUEL V-2 December 1, 2014 12:54 p.m. 2 where there are acres and acres of military equipment just waiting to

be deployed should there be a need.

And furthermore, in Paragraph 3 of Article 4, it reads, “The pre-

positioned materiel of United States force shall be for the exclusive

use of the United States force and full titles of such equipment,

supplies and material remains with the United States.” With that, the

United States will have control over the access to and disposition

of such pre-positioned materiel and shall have the unencumbered

right to remove such pre-positioned materiel at any time from the

territory of the Philippines.” This is implying that these pre-positioned

materiel in the Philippines agreed locations is for war and it is not

to do with training, it is not to do with increasing the Philippine

Armed Forces capability but merely it is using the agreed locations

in the Philippines should there be a need to prosecute a war in our

part of the world which will—and the pre-positioning of this materiel

will be clearly for the use only of United States forces, surely that

implies that this is now a US base.

SolGen or Usec Batino.

MR. BATINO. Thank you, Madam Chair and Your Honor.

We would like to make emphasis on the pertinent phrase in

Paragraph 1 of Article IV that requires the pre-positioning and storing

of defense equipment to go through bilateral security mechanisms

68

COMMITTEE ON FOREIGN RELATIONS PLMANUEL V-2 December 1, 2014 12:54 p.m. 3 such as the Mutual Defense Board and Security Engagement Board.

This clearly provides that the Philippines’ consent is needed for the

pre-positioning of these materiel taking into consideration its own—

our own national interest.

SEN. MARCOS. My reading of it is that it does not require

the Philippine consent any longer because in the language,

Philippine consent is actually being given and therefore that consent

need not be given at any time in the future. It is already given by

virtue of this agreement. So, there is no bilateral consultation in any

way. Dahil ibinigay na natin ang karapatan, “Sige, sige, magpasok

kayo kung ano ang gusto ninyo na mailagay ninyo dito sa mga

agreed locations.” Mga gamit na hindi naman magagamit ng mga

sundalong Pinoy. So, papaano hindi naging base iyan? Parang it

looks to me—it sounds a lot to be like a base because this is

precisely the kind of activities that they do on bases on American

soil. Kaya nga napapag-usapan natin na maraming nababanggit

tungkol nga sa training, capability, disaster relief. Okay, lahat yan.

Pero maliwang na maliwanag mayroon silang—may bahagi noong

agreed locations na para sa Amerikano lang at tayo naman ay

pumayag.

MR. BATINO. Yes, Your Honor. We think that we need to

contextualize the language presented under Paragraph 1. The Mutual

69

COMMITTEE ON FOREIGN RELATIONS PLMANUEL V-2 December 1, 2014 12:54 p.m. 4 Defense Board and the Security Engagement Board are established

consulting mechanisms that meet regularly year-to-year to discuss

the activities and all other details in connection with these activities.

Thus, this is a regular consulting mechanism between the US and the

Philippines in the planning of training activities as well as other

operational details such as venue of the training exercise and the

possible materiel to be used for the training exercises.

So, it is our position, Your Honor, that through Paragraph 1, it is

clear that there is still this consenting mechanism that is needed to

be passed before any pre-positioned materiel could be decided by

the two parties to be stored in the agreed locations.

SEN. MARCOS. Well, again, the last sentence on that

paragraph says, “the United States forces shall notify the AFP”—will

not consult, will not seek the agreement but will notify. Again, this

bilateral consultation seems to be absent in that kind of language.

MR. BATINO. Your Honor, the first sentence would pertain to

the identification of the pre-positioned materiel to be stored. Once

the determination has been made, then we still require the US to

notify us in advance of the delivery of this pre-positioned materiel.

Of course, this is needed so that we could coordinate our protocols

with the delivery of these items.

70

COMMITTEE ON FOREIGN RELATIONS PLMANUEL V-2 December 1, 2014 12:54 p.m. 5

Also, Your Honor, we would want to also emphasize a very

important paragraph in Article IV, specifically Paragraph 2 where the

parties share a recognition of the benefits that such pre-positioning

could have for HADR and for the enhancement of their individual and

collective defense capabilities, which is, again, in consonance with

Article I of the EDCA which focuses on the development and

preparation of our individual and collective capacity for mutual

defense.

We note, Your Honor, your observation under Paragraph 3 and

it is our position that this is a reasonable provision because these

equipment, materiel stored really still belongs to the US. However,

it will be used for the conduct of training exercises for the benefit

of both the Philippine and US forces. It can be used for HADR in times

of disasters.

SEN. MARCOS. But, Usec, there is nothing here to say that

the pre-positioned material will only be relief goods, will only be

water supply for disaster preparedness, will only be for that. If that

were the only thing, that will certainly wouldn’t be a problem. But

we are talking about weapons and materiel that are being stored.

But, anyway, I need not belabor the point. I think I have

made my point that it would seem that, at least, at the very least,

there is a section or part of these agreed locations which will be for

71

COMMITTEE ON FOREIGN RELATIONS PLMANUEL V-2 December 1, 2014 12:54 p.m. 6 the sole use of the United States forces which would seem to imply

that they have now established a base in the Philippines.

So, with that, Madam Chair, thank you.

THE CHAIRPERSON. Atty. Harry Roque … /plm

72

COMMITTEE ON FOREIGN RELATIONS Sglrobles VI-2 December 1, 2014 1:04 p.m. 1

THE CHAIRPERSON. …Atty. Harry Roque.

MR. ROQUE. Thank you. Good afternoon, Madam Chair. Good

afternoon Senator Marcos and Senator Cayetano.

I will not repeat points previously discussed by Dean Magallona

and the Chairperson as well. I will, however, focus on three points.

No. 1, that this EDCA cannot be an implementation of the MDT nor can

it be an implementation of the VFA.

Secondly, why for all intents and purposes, the provisions of

EDCA provides for the establishment of military bases. And the third

point I would like to address is whether or not the exchange of

ratification has made EDCA already effective under the Vienna

Convention on the Law of Treaties.

Now, it is our position that EDCA cannot be an implementing

agreement on the Mutual Defense Treaty because, No. 1, it constitutes

a new policy. No. 2, it has a different option and purpose from the

MDT and it has a different context from the MDT.

Now we say that it is a new policy because it forms part of,

literally, a brand new policy. And according to the decision of the

Supreme Court in Commissioner versus Eastern Trading, treaties that

formulate a new national policy need the concurrence of the Senate

and those that… existing ones don’t need the concurrence of Senate.

Why do we say it’s a new policy? Well, it’s a new policy that

makes the Philippines a partner of the United States in its brand new

73


defense policy. Now, under this new strategic guidance which has

been mentioned by the Chair and Dean Magallona, not only is there a

pivot to Asia but they will now emphasize existing alliances and expand

networks of cooperation.

According to former President George Bush, the US must be

ready to strike at a moment’s notice in any dark corner of the world.

And this new policy was really summarized by a quadrilinear defense

review which says that they must move way from obsolete cold-war

garrison, such as permanent bases to mobile expeditionary operations.

Now, under this new setup, the United States will maintain three

kinds of US military facilities. They will maintain military structures,

those in Germany, in Guam and in Korea. They will soon be kicked out

of Japan.

Secondly, they will have what they call forward-operating sites.

Now, these are still owned by the US but they are smaller. There are

more space bases that could be expanded when there’s a need for it.

They will have pre-positioned equipment and will also host a small

number of troops on a rotational basis.

A third type is one which includes EDCA. It is called the

cooperative security locations. Their facilities owned by host

governments to be used by the United States in case of actual US

operations. I emphasize “actual US operations.” But meanwhile, they

could be visited and inspected by the United States. They will be

74

COMMITTEE ON FOREIGN RELATIONS Sglrobles VI-2 December 1, 2014 1:04 p.m. 3 useful for pre-positioning logistic support or as venues for joint

operations with host militaries. They could also be expanded into

forward operating stations.

Now, the problem is the Executive by merely restating Article II

of the Mutual Defense Treaty believes that it has become a mere

implementing agreement of the MDT. Of course, this is not in accord

with the rule of interpretation of treaties in the Vienna Convention on

the Law of Treaties. Not only must we interpret treaties in good faith

using their ordinary meaning. We must also do so in their context and

in light of its object and purpose.

Now, clearly, the object of the MDT is specified in Article IV of

that treaty. When one party is attacked, the other would consider that

to be dangerous to its own safety and they will act to meet the

common dangers in accordance with its constitutional processes. So

any response cannot be swift. It must pass through their

constitutional processes. And in the case of the United States, through

the US Congress for a declaration of war.

Now, Article V in turn defines what the objects of attack that

could trigger the application of a treaty and that includes an attack on

either of their metropolitan territory or on either of their island

territories under its jurisdiction in the Pacific.

Now, obviously, the EDCA cannot be a mere implementing

agreement of MDT, assuming even that MDT is valid despite the

75

COMMITTEE ON FOREIGN RELATIONS Sglrobles VI-2 December 1, 2014 1:04 p.m. 4 objections raised by Dean Magallona, because the EDCA is not just for

the purpose of collective security. There is no restriction on what the

Americans can do. And because of this, the Americans can even use

our military bases for the purposes of committing the crime of

aggression. They could even use our military facilities for rendition

and this is not fiction. In Arar versus Ashcroft, the Canadian

government awarded damages to a Canadian national who was

mistakenly rendered to Syria and tortured after he was intercepted by

the CIA in JFK in New York. And they could even use it as operation

for flying of drones which already a high court in Peshawar said was

illegal under international law because it violated human rights and

international humanitarian law. The Human Rights Council only last

week decided to form a body precisely to rule on the legality of these

drones.

Now, the context is also different. Dean Magallona already

mentioned that the context is the Cold War. And, in fact, the premise

was that an attack on the Philippines was an attack on the US since

the US had the biggest naval and air force bases in the country outside

of continental United States. Of course, today matters have changed

not only is there firm diplomatic relations between the US and China.

The USSR has become a thing of the past. China has become the

biggest creditor of America, the biggest foreign investor in America.

And SEATO, which was the regional collective organization established

76


to complement the MDT, no longer exists.

Now, here are some of the contextual differences between EDCA

and the Mutual Defense Treaty in addition to the fact that they have

different object and purpose. No. 1, there is no such thing as

rotational presence of troops under the MDT. And the reason for this is

that the presence of troops during those times was pursuant to the

Military Bases Agreement. And that’s why the MDT does not talk at all

about the stationing of troops, bases and facilities into the country.

No. 2, well, it’s very clear that pursuant to the new US policy,

EDCA forms part of an actual defense operations and not just for

preparedness. It’s not just for purposes of developing capacity to

exercise self-collective defense.

No. 2, even in the Military Bases Agreement, we did not give

contractors, such as Blackwater, the status as if they form part of US

forces. They are now considered as part of US forces.

Now, in Iraq there’s lots of legal controversies generated by

Blackwater because Blackwater seemed to be invoking the same kind

of immunities that the US government can invoke where there are

complaints that they have violated international humanitarian law.

Now, moreover, the presence of troops, bases and facilities in

the EDCA is really more akin to the military bases agreement which

was rejected in 1991. Their sovereign powers are so expansive that—I

would discuss this in a while to show why we believe that there is

77


actual basing.

Now, as far as facilities, of course, there is no pre-positioning of

equipment under the MDT. And, again, highlighting the fact that EDCA

authorizes their use for other than collective security purposes even if

it has no relation to the Philippines, whatsoever. And this is one

peculiar fact under EDCA. The Americans are allowed to operate their

own telecommunication facilities which under the Constitution is

reserved to Filipinos and must be provided the franchise by Congress

but we have given it to the Americans hook, line and sinker.

Now, why do we say that it is also not an implementation of the

VFA? Well, very clearly, Madam Chair, Your Honors, this Congress in

Senate Resolution No. 16 which provided its concurrence to the VFA

made it very clear that the presence of the United States troops and

facilities under the VFA should only be for visit and for joint military

exercises.

Obviously, this is not the case with EDCA because the Americans

can use their troops and their pre-positioned equipment for actual US

defense operations. Another difference, of course, is there is no pre-

positioned equipment under the VFA and there are powers provided

under EDCA which are not found in the VFA. And I quote actually from

the very primer published by the DFA in this regard because other than

visiting and joint military exercises, under EDCA they are allowed to

build temporary accommodation, pre-positioning of equipment and

78

COMMITTEE ON FOREIGN RELATIONS Sglrobles VI-2 December 1, 2014 1:04 p.m. 7 materials as well as deploying force and materials.

Now, likewise, this is very important, Your Honor. The VFA rules

on jurisdiction including primary Philippine jurisdiction for non-service

related offenses apply only when the VFA is applicable, when US troops

are here for visit and joint military exercises, when they commit a

crime similar to what Nicole experienced and what Jennifer Laude

experienced, rape and murder. And the troops are here because of

EDCA, the rules on jurisdiction over the servicemen will not apply.

Instead, it is the general rules…/sglr

79


MR. ROQUE. …Instead, it is the general rules of customary

international that will apply and that is complete immunity from

domestic jurisdiction. That is very clear because EDCA goes beyond

visiting and joint military exercises. Now, why do we say also that this

provides for permanent bases? Although I highlight that what the

Constitution prohibits in Section 25 of Article XVIII is not just

permanent bases, it could include temporary bases because the

language of the Constitution is unqualified. Troops, bases and

facilities. Here are specific provisions: Number one, the term. It could

be a lifetime which is similar to MDT; Number two, it is incorrect I

believe to invoke that it is not a base because there is no extra-

territoriality. The concept of extra-territoriality has been abandoned.

That was the ruling in the Lotus. Today, we talk only of immunity from

domestic jurisdiction. We no longer consider foreign ships as floating

territories. We no longer consider diplomatic premises as foreign soil

in Philippine territory. They remain Philippine territory but exempt or

immune from domestic jurisdiction. So, it does not matter that there

is no extra-territoriality because what is important now in the

international law is whether or not they’re immune from domestic

jurisdiction and I believe they are. Number one, under the

paragraphs, you can see that US personnel property equipment shall

be allowed to operate in agreed locations. They shall have access and

80


use. Next, not only access and use, they will also have access to

public land and facilities including those owned by local government

and other land and facilities. They can use the entire Philippines as a

military base for all they want. And of course, although, they say that

there is no extra-territorial application, look at this provision.

Philippine authority is required to comply with operational safety and

security requirements for them to have access to agreed locations.

Ibig sabihin po, bagama’t nakasabi doon na bawal ang nuclear

weapons, paano natin malalaman kung may nuclear weapons nga, eh,

hindi naman tayo pupuwede pumasok doon sa mga facilities nila unless

we comply with “operational safety and security requirements.” Kapag

nuclear weapons po iyon, siyempre mayroong “Restricted. Do not

enter.” So, tapos na po ang usapan. Hindi na natin mabe-verify kung

mayroon nga silang nuclear weapons. And then iyong pre-positioning

nga po. It is exclusive use of US forces and full title remains with the

US. Ang punto po dito, hindi na nila kailangang may US bases kasi

they cannot afford it economically and politically. So, they just want to

use ours but only for their sole benefit. Ito pa po iyan, they shall

retain title to an equipment. They may construct permanent buildings

which shall be used by US forces until no longer required and the

absurdity of this is while they are here rent-free, if we want these

facilities, we have to pay a price for it. And finally, they have the right

81


to use water, electricity, other public utilities and to operate its own

telecommunication systems. And the catchall provision is, we give US

forces authority to exercise all rights and authorities within agreed

locations that are necessary for their operation or control or defense.

Where is the exercise of Philippine jurisdiction when we have given

them blanket operational control or defense and not just for

construction purposes?

My last point, Your Honor, is I was shocked that in the Supreme

Court, the position of the Executive was that this agreement was

already in force. I do not think that just because the Executive says it

is in force that, in fact, it is because under the Vienna Convention on

the Law of Treaties, there is only one exception where a state may

invoke its domestic law as a ground for non-performance of a treaty

and that is when the consent is vitiated by reason of a domestic law

requirement that is manifest, number one, and of fundamental

importance. I believe that Section 25 of Article XVIII is lex specialis

because it applies exclusively to military bases, troops and facilities

and that this is… because Americans knew this when the Senate

rejected the bases agreement in 1991. And therefore, I think, under

international law, we can rightfully invoke that our consent was not

properly given because the Senate was not asked for its concurrence

to this EDCA.

82


Thank you, Madam Chairman.

THE CHAIRPERSON. Thank you very much for that spirited

presentation.

Unfortunately, we’re running out of time. The Senate plenary

session will begin at 3 o’clock. In any event, we had a negotiating

panel for EDCA here. They will be available to take any questions if

necessary and we shall hear possibly not the entire statements but, at

least, the cracks of the statements from the remaining resource

persons against EDCA. So, I will call you in the order which you are

seated: Dr. Roland Simbulan, Secretary General Renato Reyes and

Representative Nery Colmenares.

Dr. Simbulan please.

MR. SIMBULAN. Madam Chair, I respectfully thank the Foreign

Relations Committee for inviting us, the Center for People

Empowerment in Governance or CENPEG to give our views on the

controversial Enhanced Defense Cooperation Agreement or EDCA.

CENPEG is a policy research and policy advocacy think-tank on issues

of governance including Philippine foreign policy. I’m currently the

vice-chair of the board of directors and I have authored several books

on US Military Bases, Philippine-US relations and US military presence

in Asia and the Pacific.

83


Madam Chair, I will immediately address the four topics that you

have identified to be discussed in this public hearing on EDCA.

One, does EDCA need to be concurred by the Senate? The EDCA

needs to be concurred by the Senate given the constitutional

requirement that any treaty or international agreement that will allow

foreign troops, foreign military facilities and foreign military bases on

Philippine soil should be submitted to the Senate to be concurred by

two-thirds of its members. This provision is as clear as day despite the

fact that the proponents claim that it merely implements provisions of

the mother treaties such as the 1951 Mutual Defense Treaty and the

1999 Visiting Forces Agreement. But how can EDCA be a mere

implementing executive agreement when it includes specific new

provisions that rightfully belong to a new treaty? We should not let

this trick pass. For this may be used as a precedent for future

controversial executive agreements which in fact are new treaties on

the grounds that they are mere implementing agreements of previous

treaties. From the text of EDCA as it has been made clear by our

previous resource persons, it is clear that US troops are to be deployed

and US military facilities will be constructed with the assistance of US

defense contractors inside Philippine military camps in any part of our

country. From the provisions of EDCA, even the jurisdiction of national

and international courts will have to be waived in relation to disputes

84


arising from the implementation of EDCA. These are just some

provisions among many others that rightfully belong to a new treaty

that need the concurrence of the Senate.

Number two, is EDCA necessary? The EDCA enhances the

revival of the Cold War in the region in the context of the United States

Asia pivot. The Cold War has long ended. Proponents of EDCA

promote the usual misconception that US forces will come to our

rescue in the worst case scenario should a shooting war over the

Spratlys erupt between China and the Philippines. There is no

guarantee for such US support in either the MBT, the VFA or the EDCA.

For instance, in 1975, US State Secretary Henry Kissinger, clarified

that the Spratlys are not included nor recognized by the United States

as part of the coverage of “the Philippine Metropolitan territory” as

defined under the mutual defense treaty. Gone are the days when

small nations were used as pawns of the big military powers. So, let

us not allow this to happen again to us through EDCA. Trade and

economic competition under the globalization regime has become the

means for nations, even the big powers, in dealing with each other.

Number three, is EDCA beneficial? EDCA will only enhance…/cda

85


MR. SIMBULAN. …EDCA will only enhance the isolation of the

Philippines from the fast growing regional economic growth centers of

Asia. We will forfeit our national interest if we focus on again allowing

foreign military forces to be stationed on our territory and to use our

territory again as a launching pad and springboard for US

interventionary wars.

I recall, Madam Chair, that when I visited Vietnam’s War

Museum in Ho Chi Minh City only last year, a section of that museum

mentions the Philippines as “a satellite country” of the United States

which not only sent “mercenary troops” paid by the United States to

fight the Vietnamese people, but the museum mentions, and I quote:

“The Philippines allowed US military forces at Clark Air Base and Subic

Naval Base to launch bombing attacks and military blockage against

the Vietnamese people” who heroically resisted and eventually

defeated US military intervention in their country. Did we then realize

that that situation jeopardized our security as EDCA now jeopardizes it

because of the enemies of the United States all over the world which

will target US military forces including in our country?

Geographically, we are part of the regional growth center with

ASEAN countries: China, Japan and South Korea. EDCA will allow the

unlimited pre-positioning of the US troops facilities and war material in

any part of the Philippines, rent free, at no cost to the United States.

As a consequence, we will be dragged as an accessory to the United

86


States international conflicts, its wars of intervention, aggression

against other countries who are not even our enemies. We will be

abdicating from the fruits of this growth center in our region if we play

into the hands of the US-Asia pivot to remilitarize the region instead of

focusing on trade, investments and economic relations.

And finally, to the question: Is EDCA practical? The EDCA

enhances US intervention in the Philippines with the regular presence

of foreign troops all year round as they have been here since 2003,

thus overturning the Senate’s historic rejection of the US bases treaty

in 1991 and the Senate resolution in 2009 which called for the

abrogation of the VFA, the basis of EDCA, should the US refuse to a

bilateral review of the VFA to amend its onerous provisions.

And if the proponents of EDCA continue to insist that this is just

a mere implementation of previous existing treaties, then by all

means, let us abrogate the roots of these sell-outs, the MDT and the

VFA, which have transformed our country into a de facto forward base

for US interventionary forces of what the renowned American scholar,

Dr. Noam Chomsky, calls “the No. 1 terrorist state” in the world today.

The Philippine Constitution, we believe, incorporated the

stringent requirement of this kind of agreement. We submitted to the

Senate for concurrence so that our nation will never again compromise

our tenets of sovereignty, peace, and self-determination for ourselves

and our neighbors by hosting foreign military forces such as those of

87


the United States which were used actively for aggression and

intervention against smaller states and peoples seeking self-

determination. Agreements like EDCA are patently one-sided or

onerous and it is a clear-cut case of negotiated subservience. So why

do we agree to them and accept and inflict upon ourselves this kind of

negotiated subservience?

Madam Chair, even the Department of Foreign Affairs, in its note

verbale to the US embassy, No. 060103 dated January 17, 2006, on

the implementation of the EDCA’s mother treaty, the VFA, in

connection with the issue of the custody of Daniel Smith, wrote, and I

quote: “In addition, while aware of the differences between the

agreement and similar agreements entered into by the United States,

the Philippine government is seriously concerned over the patent

disparity in the treatment of US military personnel in other countries

on the issue of custody in criminal cases.”

So, what did we do about this? We inflicted on ourselves a graver

form of subservience, the Enhanced Defense Cooperation Agreement.

Sadista talaga tayo sa ating sarili.

Thank you, Madam Chair, for this honor of inviting us to your

Committee to present our views on this controversial issue that needs

to be addressed from the perspective of Philippine national interest and

Philippine national security.

Thank you and good afternoon.

88


THE CHAIRPERSON. And thank you too.

Mr. Renato Reyes.

MR. REYES. Maraming salamat po. Magandang tanghali.

Katulad din po ng mga nabanggit, hindi po maaaring ituring ang

Mutual Defense Treaty bilang framework para sa pag-i-istasyon ng

mga sundalong Amerikano sa ating bansa. Katunayan po, bago pa man

magkaroon ng Mutual Defense Treaty, may mga sundalong Amerikano

nang nakabase sa ating bansa at ito ay sa pamamagitan ng Military

Bases Agreement of 1947. So it predates the Mutual Defense Treaty.

Hindi rin po maaaring gamiting batayan ang VFA tulad rin ng nabanggit

dahil nga po ito ay para lamang sa panandalian, temporary na

pagdalaw ng mga sundalong Amerikano sa ating bayan. Pero sa mga

nagdaang taon, nagawan po nila ng paraan para ikutan iyan dahil nga

tinatawag na ngayon nilang rotational presence. Ibig sabihin, may

papasok sa ating bansa, may lalabas but at any given time, there will

always be American troops in our country. Yet, we cannot use the VFA

because the VFA does not allow the construction of permanent facilities

for US forces.

Doon sa tanong po na, is EDCA necessary? We believe that EDCA

is not necessary for the defense of Philippine sovereignty and the

advancement of our national interest. The US is part of the US

strategic pivot to Asia. Ito pong pivot which was announced in 2011

was the reason why the Philippines and the US held a meeting in “two-

89


plus-two” meeting in Washington and there they approved a new

policy. The policy of increased rotational presence. It was only after

the policy of increased rotational presence was approved that

negotiations for EDCA started. The original title of the agreement was

the framework agreement for increased rotational presence and

enhanced defense cooperation. So doon po malinaw na ang nag-

trigger ng EDCA ay iyong announcement ng US sa kanyang pivot sa

Asya. Ang kanyang pagnanais na protektahan ang kanyang economic

at military interest sa Asia.

At hindi po tayo ipagtatanggol ng Amerika sa ating mga usapin

laban sa Tsina. Wala pong nasasaad sa EDCA kaugnay niyan. Wala ring

nasasaad sa Mutual Defense Treaty at kahit nga po ang Presidente ng

Estados Unidos ay malinaw na nagsabi na wala silang intensyong

makipag-giyera sa Tsina.

Next. Sa usapin po ng is it beneficial? Ito po, marami pong

ipinapangako sa atin ang Philippine government pero hindi po iyan

makakamit. Hindi po tutungo sa modernization ang EDCA, hindi po ito

makakatulong sa AFP modernization. Walang sinasabi sa EDCA kung

paano tayo magiging moderno sa pamamagitan ng war games,

rotational deployment o iyong storage at pre-positioning ng weapons

and other forms of interaction with US troops. The agreement does not

say how the AFP will acquire extra amount of weapons, ammunitions,

90


vehicles, vessels and technology in exchange for the use of our

facilities.

Next. Hindi po talaga tayo makikinabang. Mas sila pa ho ang

makikinabang kasi nga po sa pre-positioned material at iyong

pagbabase nila sa ating bansa. Ang kanilang mga kagamitan na

nandidito sa ilalim ng EDCA ay eksklusibo lamang para sa gamit ng

mga Amerikanong sundalo and can be moved out of the country

anytime. All relocatable or movable items owned by the US forces will

be brought back to the US, leaving us with only empty buildings. They

can bring home literally everything including the kitchen sink. So ano

ho ang matitira sa atin? Mga building na walang laman. Iyon po ang

nasasaad sa kasunduan. At kung totoo nga po, kung totoo po na US

military presence…/jadc

91


MR. REYES. …na US military presence will lead to

modernization, we should now be super power after 44 years of the

bases and 15 years of the VFA. Ano po ang nangyari? Bakit wala po

iyong sinasabing “modernization”?

Binabanggit po kanina iyong pag-store, iyong paglalagay ng

materiel. Gusto natin pong banggitin iyong definition ng US

Department of Defense Military Dictionary, what do they mean by

“materiel.” It means all items including ships, tanks, self-propelled

weapons, we presume missiles, aircraft, et cetera—and related spares,

repair parts and support equipment excluding real estate, real

property, installations and utilities necessary to equip, operate,

maintain and support military activities without distinction as to its

application for administrative or combat purposes.

So, ipaparada po sa atin dito mga barko, mga tangke, mga

sasakyang pandigma. Kasama po iyon doon sa malawak na definition

ng materiel na puwedeng i-preposition dito sa ating bayan.

Next. Humanitarian assistance and disaster response. Ito raw

iyong maaari nating makuhang benepisyo. Gusto natin pong banggitin

na noong panahon ng Yolanda marami pong mga bansa ang nagbigay

ng humanitarian assistance, disaster response sa atin. Pero Amerika

lang po ang humihingi ng isang military agreement kapalit ng

pagbibigay ng humanitarian assistance at disaster response. Tingin po

natin hindi kinakailangan. Kung tutulong talaga, tutulong. Puwede

92


naman pong gawin iyan ng mga sibilyan na ahensiya without any

military agreement in exchange for the humanitarian assistance.

Next. Doon po sa pagiging practical. Nabanggit na nga po na

unconstitutional, unnecessary and hindi beneficial itong EDCA. Kaya

hindi rin po maituturing na practical para sa ating mga kababayan,

para sa ating gobyerno. It is grossly disadvantageous. Wala na nga

po tayong malinaw na napapala, libre pa nating ipapagamit ang ating

buong bansa at mga pasilidad. Pati po iyong tubig at kuryente tax-

free natin iyang ipapagamit sa mga Amerikanong sundalo. Ang

magbabayad po ng tax sa utilities, sa tubig, sa kuryente at iba pa ay

ang Philippine government, iyong AFP. So, nasaan talaga iyong

pakinabang doon? Kumbaga iyong taning ng EDCA maaaring mas

mahaba pa sa 1947 Military Bases Agreement. Originally, it was 99

years pero ito’y na-terminate noong 1991. Dahil nga po after 10

years, in effect na po itong agreement na ito indefinitely.

Kaya ang amin pong panawagan sa Senado at natutuwa kami na

iginigiit ng Senado ang kanyang poder sa usaping ito. At panahon na

po talaga para panindigan natin iyong pambansang soberanya natin at

pambansang interest at huwag tayong pumayag sa isang hindi

makatarungan at grossly disadvantageous na kasunduan na tayo po ay

talagang dehadong-dehado.

Maraming salamat po.

THE CHAIRPERSON. Thank you, Mr. Renato Reyes.

93


And finally, Representative Neri Colmenares.

REP. COLMENARES. Maraming salamat po, Madam Chair.

Good afternoon sa members ng Senate.

I will delve on certain issues na lang po, Madam Chair.

EDCA is an agreement pertaining to the entry of foreign troops

bases or facilities. The Constitution under Article XVII, Section 25

requires three things. One, it should be concluded in the form of a

treaty; two, it should be submitted to the Senate for concurrence and

its ratification; and three, that treaty should grant Congress the

discretion and the opportunity to decide whether or not to call for a

referendum and consult the Filipino people to approve or disapprove

the same.

Because of the insistence of the President to consider this as a

mere executive agreement, he, therefore, violated the Constitution and

the requirements of the Constitution. So, in that sense, Madam Chair,

I agree with the various resource speakers who said that, in fact,

indeed, it should not be considered constitutional.

But other than the constitutional requirements, Madam Chair,

EDCA has dark and serious implications on Philippine sovereignty that

requires the President at the very least the courtesy of asking or

consulting the Senate and Congress before he commits the Philippines

to the gross surrender of its sovereignty.

94


One, Madam Chair, it provides for basing of foreign troops. The

term is pre-positioning of foreign troops, pre-positioning of war

materiel, but it’s actually basing. Whether or not it’s a base, let’s

grant without even agreeing with the executive. It’s not a permanent

base. But the Constitution does not require that it be a permanent

base. The basing of foreign troops and weapons is compounded by

the provision under Article III, Paragraph 1 of EDCA, which says that

this can be deployed by the United States at any time. They

have, in fact, the unencumbered right to remove this war material

and deploy its troops. This transforms, Madam Chair, the Philippines

into a launching pad to attack enemies of the United States. And the

United States has a lot of enemies, Madam Chair.

So, now, we will be embroiled in a war not of our own making.

Doesn’t this pose a danger to the Filipino people? We will be

considered legitimate targets of the enemies of the United States

because these troops and these weapons were previously based in the

Philippines before they were deployed in Ukraine or in Syria or

wherever the United States wishes to launch its war. These we believe

EDCA should, at least, grant the Senate the opportunity to discuss the

ramification of this endangerment of Filipino people.

Second, EDCA provides control over the United States despite

the statements of the executive that the control resides with the

95


Philippines. The fact is, the provision in EDCA provides virtual control

on the part of the United States.

For example, Madam Chair, it provides that all rights and

authorities shall reside with the United States in the agreed location

including the taking of the appropriate measures for the defense and

protection of their agreed locations and their personnel. This means

that the United States have control. And, in fact, they can act if they

feel that the defense of the agreed locations or their personnel is being

threatened, they can take measures, Madam Chair, to meet such a

supposed threat.

Can the Philippines or does the Philippines have to approve these

measures, Madam Chair? No. In fact, EDCA provides in Article IV,

Paragraph 1, that the US will coordinate. But the fact that they are

allowed to take these appropriate measures to defend their agreed

location means that they are the decisive factor here.

Two, they have an impeded access to the agreed locations.

Tingin namin hindi puwedeng mag-checkpoint dito ang Philippine

government. I-inspect mo ang pumapasok na mga weaponry. No.

The United States clearly stated in EDCA “unimpeded” ang access

namin sa agreed locations. In fact, unimpeded iyong access namin in

the deployment unecumbered rights in the deployment.

Ang Pilipinas po ba ang may unimpeded access? No. In fact,

impeded ang access ng Pilipinas sa agreed locations because they have

96


to contend with operational safety and security requirements of the

US. And only the US will say, “You cannot visit. You cannot access

the agreed locations because operational safety and defense

requirements or safety requirements do not allow such access.”

Whereas, sila may unimpeded access tayo naman ay mayroon.

May control ba sila sa mga buildings? Klaro po iyan sa Article V,

Paragraph 2. They control the buildings, they control the facilities.

And they can turn over these buildings and facilities someday,

sometime, somehow when they no longer require it.

Can you imagine, Madam Chair, a contractual obligation where

the condition is practically and absolutely dependent on one party.

“Kung kailan ko sasabihing hindi ko na kailangan, at saka niyo lang

makuha ang mga buildings and facilities na iyan.”

So, despite the protestation of the solicitor general that we own

it, we control it, practically, the EDCA, Madam Chair, disallows us or

divorces us from any of this control.

And lastly, Madam Chair, it allows for very many onerous

provisions. The Senate must, at least be, or Congress must, at least,

be consulted. Tama ba ang mamamayang Pilipino nagbabayad ng

mataas na presyo ng kuryente, tubig, lahat ng utilities? The rich and

powerful United States is exempted from paying taxes and charges

and fees for their use of electricity…cp

97


REP. COLMENARES. …for their use of electricity, water, and

other water utilities? Tama ba na i-impose natin, bigyan natin sila ng

telecommunication system free of charge ang use of radio….free of

charge ang use of radio spectrum? Tama ba na pag pumasok ang

Amerikano dito exempted sila from visa requirements? The regulatory

tool of a government to process the entry of foreigners in the country

is lost. That’s why if you ask the Philippine government how many US

troops are here in the Philippines, they wouldn’t know because there is

no regulatory tool such as a visa. But the VFA too, on the other hand

says, that the US embassy has the right to deny a Filipino soldier

entering the US. Is that not onerous? VFA-1, Madam Chair, which

applies to EDCA, pag ang Amerikano ay accused of a crime, the US

automatically gets the custody of the accused upon their request.

That’s a mandatory provision, Madam Chair. Another onerous

provision. Is it really a request? How can it be a request if the word is

“shall”? That’s not a request. That’s an order in fact that the US turn

over custody of an American soldier accused of a crime to the United

States upon their request. VFA-2, on the other hand says, if a Filipino

soldier commits a crime in the US, well they will ask the relevant

agencies if they can waive custody in favor of the Philippine

government. Marami pa pong onerous provisions na-discuss ng iba

kong kasama, but in the end, this violates the constitutional

98


requirement of checks and balance. That is the purpose of this

constitutional provision. There must be checks and balance so that the

executive cannot sell out Philippine sovereignty and independence

without at least consulting with either the Congress or the Filipino

people. And I really hope that the Senate will make it a point to assert

its constitutional prerogative under the Constitution and the mandate

given by the Filipino people.

Maraming salamat po, Madam Chair.

THE CHAIRPERSON. We, in the Foreign Relations Committee,

express profound gratitude for the participation of our distinguished

panel on both sides this afternoon.

We have said at the start of these proceedings that the Supreme

Court has ruled the Senate has no power to compel the President to

submit a Senate or international document or agreement to the Senate

for concurrence, so we cannot possibly order the President to send

over the EDCA to us for our concurrence in the ratification. But what

we can do is we shall express, since after all the Constitution divides

the foreign policy power between the executive and the legislative

branches, we shall issue a sense of the Senate resolution so that we

can summarize the views and the attitudes that you have heard from

today.

Thank you very much.

99


I will now hold my press conference here. Will you come

forward, please?

[THE HEARING ENDED AT 1:47 P.M.] …/mrjc

100

Documents

ATTENDANCE - YONIP – Intelligent Advocacy-Critical ... · Atty. Merlin Magallona - Dean, UP College of Law Hon. Rene Saguisag - Former Senator . Atty. Harry Roque - UP Institute