Gazmin: Edca deterrent but doesn’t assure US help

MANILA, Philippines–The new security agreement between the Philippines and the United States has so far deterred China from blocking Philippine resupply missions to Ayungin Shoal (Second Thomas Shoal) in the West Philippine Sea, Defense Secretary Voltaire Gazmin said on Monday.

But the Enhanced Defense Cooperation Agreement (Edca) does not guarantee the United States will rush to the aid of the Philippines if an armed conflict with China erupts in the West Philippine Sea, Gazmin said.

To intervene on the Philippines’ behalf, Washington must secure an approval from the US Congress, Gazmin told the Senate foreign relations committee.

Speaking at the opening of the committee’s inquiry into Edca, Gazmin said the agreement, signed in time for US President Barack Obama’s visit to Manila in April, was a “deterrent” to threats to the country’s security.

At the hearing, experts from the academic community, a former senator and members of progressive party-list groups moved that the Senate assert its power to concur in the agreement.

Acting Solicitor General Florin Hilbay argued that the executive department had secured “licenses” through the Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA) to enter into Edca with the United States.

After hearing the arguments, Sen. Miriam Defensor-Santiago, the committee chair, said she would introduce a resolution expressing the sense of the Senate on the need for the chamber’s concurrence in the deal.

“Right now we use the Edca as a deterrent to any threat to our security. As we’re using this, we will continue to fill the gaps through our modernization program,” Gazmin said.

How effective?

When Sen. Ferdinand Marcos Jr. asked how effective a deterrent Edca was, Gazmin said: “If you’ve noticed, we’ve not been attacked in our resupply mission to Ayungin Shoal although we had skirmishes, which did not cause a shooting war.”

“That’s due to the bravery and skills of our servicemen. I don’t think Americans played a part in that,” Marcos said.

A Chinese Coast Guard cutter tried to block a resupply mission to the small Philippine garrison on Ayungin Shoal on March 29.

But the civilian resupply vessel outsmarted the Chinese cutter and successfully restocked the Marine garrison on the BRP Sierra Madre, which the government grounded on the shoal in 1999 to mark Philippine territory in the disputed Spratly Islands.

There were unconfirmed reports, however, that two US fighter jets flew over the area as the Philippine vessel maneuvered for the shallows, discouraging the Chinese cutter from pressing the chase.

At the Senate hearing on Monday, Santiago asked Gazmin: “What will the US do if a Chinese ship fires at a Philippine ship in the West Philippine Sea?”

Gazmin replied: “It’s part of the agreement that we can pull the US to join us in the fight.”

When Santiago asked if the United States would immediately deploy planes and ships to fire at the Chinese, Gazmin said: “It goes through a process, Madam.”

Santiago cut him off, saying: “By that time, the [Philippine] ship has already sunk. What we want is an immediate [US response]. How long will those processes take?”

Gazmin said: “The process takes long.”

He added: “Edca actually serves as a deterrent so that the Chinese won’t do what it will do to the Philippines.”

Santiago retorted: “So that’s only a hypothetical line of defense. We’re just hoping in our hypothesis that they will not shoot. It’s a shooting war we’re afraid of. Suppose they shoot us anyway, whatever their pretext?”

Gazmin said: “They have to go through the constitutional process before they can intervene.”

Senate concurrence

Santiago called the hearing to ascertain whether the Senate should concur in the Edca, spurred by the oral arguments on petitions in the Supreme Court seeking to void the deal.

The agreement allows the US military greater access to Philippine military camps and bases, put up facilities and store materiel there.

The petitioners asked the Supreme Court to declare Edca unconstitutional for violations of the constitutional provisions that bar nuclear weapons and the establishment of foreign military bases in the country without Senate approval.

During oral arguments on Nov. 18, some of the justices indicated a need to refer the agreement to the Senate for scrutiny and concurrence.

But Hilbay argued that the Supreme Court should not refer the agreement to the Senate without first declaring it unconstitutional and without authority from the President.

Malacañang says there is no need for Senate concurrence, as Edca is not a treaty but an executive agreement between Manila and Washington.

‘Concept of defense’

Defense Undersecretary Pio Lorenzo Batino, chair of the Philippine negotiating panel, said Edca was confined to the “concept of defense” in so far as it implemented the 1951 US-Philippines MDT.

“It is through the Edca that we envision a greater preparation mechanism for the Mutual Defense Treaty to be able to implement it in the future,” Batino told Santiago’s committee.

Merlin Magallona, former dean of the University of the Philippines College of Law, defined the dilemma facing the Senate.

“May the Senate act on a treaty except when it’s transmitted by the President with the instrument of ratification signed by him? If the President refuses, and under the circumstances, the President certainly will refuse for the reason that it has already been operative as an executive agreement,” Magallona said.

“And certainly we can’t expect the President under the circumstances to transmit Edca to the Senate for concurrence, and certainly the Senate may not be in a position to express concurrence,” he added.

Nonexistent treaty

Santiago commented: “It will be a treaty that does not exist.”

Magallona acknowledged that Edca had been enforced as an executive agreement to avoid the constitutional provision for Senate concurrence.

Santiago agreed that this in effect removed the Senate from the picture. Citing Article 7, Section 21, of the Constitution, she maintained that no treaty or international agreement is valid and effective unless concurred in by at least two-thirds of the Senate.

She wondered whether the Edca had already been enforced.

“But can an invalid document be valid? Of course not,” she said. “Any person with brains in an elementary level can answer that question.”

Who then should determine whether the Edca is an executive agreement or a treaty?

Citing Executive Order No. 459, Foreign Secretary Albert del Rosario said it’s the role of the Department of Foreign Affairs (DFA) to determine whether an agreement is a treaty or an executive agreement.

The order has been upheld by the Supreme Court, he said.

Santiago commented: “It’s the executive branch that issues the executive order, and in the executive order, it gives itself through the DFA certain powers. That can’t bind by any means the two other branches of government.”

Violation

Magallona said Edca as an executive agreement contravened Article 18, Section 25, of the Constitution, which prohibits foreign bases, troops or facilities in the country except under a treaty concurred in by the Senate.

He said Hilbay, in the oral arguments in the Supreme Court, admitted that the Edca “entered into force” as an executive agreement.

“Which necessarily implies his admission as to the substantive content of that executive agreement, namely that it intends and provides for the right of the United States government to build structures, storage of weapons, defense supplies and materiel, stationing of military forces or troops and other personnel, vehicles, and presence of military aircraft and vessels and the establishment of ‘agreed locations,’ in Philippine territory,” he said.

Magallona said Hilbay explained that Edca was an implementation agreement of the MDT and the VFA, and hence did not need Senate concurrence.

“The view that there is such a thing as an implementing treaty is a wild invention,” he said.

Uphold Constitution

Former Sen. Rene Saguisag, one of the petitioners against the Edca in the Supreme Court, pressed the Senate to exercise its power to concur.

“If we don’t defend our Constitution, who else will?” he said, stressing that the Senate and the President shared the role in foreign policy.

“If they don’t transmit it here, I hope it will be in some kind

of suspended animation until Mr. Aquino is persuaded to follow the constitutional, institutional arrangement,” he said.

The agreement could not be decided by one man alone, Saguisag said, recalling that former President Corazon C. Aquino and former Foreign Secretary Raul Manglapus dealt with the Senate on matters like this.

“There was transparency, there was involvement,” he added. “They should involve those of us who would really feel the consequences. I’m in the last quarter, last two minutes, maybe in the predeparture area, but I care for my grandchildren. I want them to have a say. Here, you’re excluded.”

“I regret to have to differ with my friend, the President, whom I support 99 percent of the way but not here,” Saguisag said.

“I once worked here, and I was proud of the Senate, which was not ignored by his mother. My appeal to you, please pass a ‘sense of the Senate’ resolution that in this matter the Senate may not be ignored,” he said.

Santiago said she would file a resolution expressing the Senate sense, taking into account the views of the resource persons.

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