Betrayal of public trust


09:50 PM September 22nd, 2013

By: NELSON D. LAVIÑA, September 22nd, 2013 09:50 PM

At the height of Chinese arrogance in the West Philippine Sea, Defense Secretary Voltaire Gazmin offered our former military bases to the United States, in case war breaks out in the region. Commentator Bernie Lopez called it an unconstitutional “suicidal notion.” Journalist Manuel Almario recalled the nuclear “apocalyptic scenario” of Claro M. Recto on a race “with a mysterious urge for suicide.”

The Philippines and the United States are now negotiating on “expanded access” to our country by US armed forces. Malacañang stresses a “temporary,” “rotational,” “increased presence,” shorter than 20 years. It assures us that the Constitution will be respected. US Defense Secretary Chuck Hegel, on a recent visit to Manila, confirmed that America is not interested in “permanent bases.”

In 1991, the Philippines rejected, through the “Magnificent 12” patriots of the Senate led by Jovito Salonga, the draft Manglapus-Wisner treaty which would have replaced the 1947 RP-US Military Bases Agreement (MBA). It did not respect Philippine sovereignty and had no termination date. Raul Manglapus, foreign secretary of President Corazon Aquino, recklessly negotiated the agreement and grossly transgressed the 1987 Constitution.

Barely a decade had elapsed after the banishment of US troops from our shores than a new, unequal agreement was devised by the Americans, through the Gunga Dins in our government. Under the RP-US Visiting Forces Agreement (VFA), signed by Domingo Siazon, then foreign secretary, and ratified by President Joseph Estrada, US troops can go anywhere in the country for “visits,” like the Balikatan exercises which, more often than not, become indefinite. The US soldiers are conveniently embedded in units of the Philippine military. Columnist Conrado de Quiros laughs that they are on R&R in the country courtesy of Filipino taxpayers.

When challenged at the Supreme Court, the VFA was ruled valid in the case of Nicolas v. Romulo. However, in the United States, the US Supreme Court ruled in the case of Medellin v. Texas that agreements not concurred in by the US Senate are unenforceable in US territory. To be valid, the agreement should be enacted into local law. Or it should be self-executory. Lacking these qualities, the VFA (like the MBA, Mutual Defense Treaty, and UN Charter) is unenforceable in US jurisdiction.

Among the most controversial features of the MBA was the criminal-jurisdiction clause. Historically, under the MBA no single US soldier was convicted and jailed in a Philippine prison. On the other hand, under the VFA we have jurisdiction but, ironically, no custody. In the case of Lance Cpl. Daniel Smith, he was convicted of rape by a Philippine trial court but was allowed to be confined in the US Embassy compound until his acquittal, thanks to the secret diplomatic note issued by Siazon to the US authorities.

Protests have been made against the VFA. The Supreme Court, in Nicolas, ordered the then foreign secretary, Alberto Romulo, to conduct with US authorities an urgent review of the VFA. However, America announced its “pivot” project strategy—60 percent of its navy will continuously patrol the Pacific around the territories of the United States, Australia, the Philippines and Singapore, foreclosing the VFA review. The Inquirer, in an editorial, concurred with a political analyst that, under the VFA, with unlimited US access to Philippine airports, seaports, airspace, sea lanes—from Batanes to Sulu—the whole Philippine archipelago has become de facto one big US military base!

In another editorial, the Inquirer expressed its doubts on the constitutionality of the Gazmin proposal. Its leading columnists, Randy David and De Quiros, shared the misgivings. De Quiros was not at all convinced that America will honor the termination clause of a framework agreement. UP professor Roland Simbulan did not give credence to Hegel’s assurance.

It is patent that the Aquino administration’s offer to America and “other allies” like Japan is unconstitutional. We respectfully invite the tandem of Gazmin and Foreign Secretary Albert del Rosario to reread Section 25, Article XVIII of  the 1987 Constitution. Plainly, the provision is bereft of any notion of “temporary,” “rotational,” or “expanded” access, or “increased presence” of “troops,” or “nonpermanent bases,” “facilities” or “equipment” being allowed—except in an agreement “ratified as a treaty” by both parties.

With a framework agreement, the American Eagle may scare the Chinese Dragon. We have, therefore, to bid adieu, again, to the “modernization” program of our military. Unless President Aquino is stricken by lightning, he will ratify the agreement—making the whole country a de jure US military base. He seems to follow the footsteps of his mother. Cory Aquino violated the 1987 Constitution by ratifying the infamous Manglapus treaty, fighting tooth and nail together with the United States to retain the bases. She lost.

Her son may soon ratify, as a mere “executive agreement,” the Gazmin-Del Rosario-inspired agreement, evading the Senate. Sen. Miriam Santiago expects a Senate scrutiny of the accord.

The original VFA was submitted to the Senate for concurrence. Logically, any subsequent agreement with “increased” rights and obligations, or “presence” of thousands of soldiers, and a number of warships, warplanes, “equipment”—and with some flaws of the Manglapus treaty (e.g., presence of nuclear weapons, whether we like it or not, hence violation also of the Non-Proliferation Treaty and of the Asean Zone of Peace, Freedom and Neutrality)—has to be debated and defeated in the Senate.

Under the 1935 Constitution (with the annexed Tydings-McDuffie Act) and the 1987 Constitution, national interest has enshrined this nation’s freedom from foreign military bases. There is now a most compelling reason for Congress to reflect on a process for impeachment of a popular president—for culpable violation of the Constitution, and betrayal of public trust.

Nelson D. Laviña is a retired ambassador.

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