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Onerous, irrational and unconstitutional

Barely finished, the Enhanced Defense Cooperation Agreement (Edca) was rushed for the signature of Defense Secretary Voltaire Gazmin and US Ambassador Philip Goldberg as a gift to visiting US President Barack Obama late last month. Filipino lawmakers like Sen. Miriam Defensor Santiago wanted the Edca debated in the Senate; others such as Bayan Muna Rep. Neri Colmenares threatened to have it invalidated by the Supreme Court. The Left burned the US flag, joining the Right in denouncing the impairment of sovereignty and the new “yoke of slavery.”

The deed, one-sided and open-ended, is done with onerous, irrational and unconstitutional premises.

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Political. America is freeloading. Events belie the local panel’s assertion that the Philippines invited the United States as our guest, to use our former bases and facilities—rent-free—as counterweight to China. The Chinese became aggressive in the West Philippine Sea in 2012; the United States decreed its “pivot” to Asia much earlier. Clearly, America decided, unilaterally, to make the Philippines home to thousands of its soldiers, aircraft carriers, battleships and warplanes. And the Philippines followed America in a zombie-like stupor.

Myopically, Gazmin and Foreign Secretary Albert del Rosario, with men of their ilk, like the seasoned journalist Amando Doronila, cheer that US presence or show of force could compel China to back off. Geopolitical realities would shock them. Recall that Russia cannot tolerate a neighboring Ukraine under Nato hegemony; that America’s CIA allegedly assassinated the democratically elected Marxist President Salvador Allende of Chile; that during World War II, Roosevelt, Churchill and Stalin promised the Diaoyu islands to China but, after the war, backed Japan to keep them (up to now); and that while protesting, America realistically advised its airlines to respect the Chinese Adiz (Air Defense Identification Zone) in the East China Sea.

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Indeed, in Manila, Obama said the US aim is “not to counter” and “not to contain” China. Nothing can be clearer than that.

Militarily, the Edca can protect us only as far as the Mutual Defense Treaty (MDT) can go. As interpreted by Henry Kissinger, the MDT does not cover the Kalayaan islands, a municipality of Palawan. And US response to an external attack on Philippine “metropolitan” territory is not automatic; it is conditioned on the US Congress acting “in accordance with its constitutional processes.”

Notwithstanding Obama’s “ironclad” pledge, therefore, the United States may just refer the matter to the United Nations Security Council where, unfortunately, China has a veto.

As the MDT was inutile, Sen. Juan Ponce Enrile filed a resolution in 1989 to abrogate it. And as the 1947 Military Assistance Agreement had also failed to assist our armed forces to modernize, then President Fidel Ramos allowed it to lapse. The infamous Mutual Logistics and Support Agreement, unratified up to now, must also be terminated soonest.

Economic. America cannot and will not spend a cent on the Edca. US troops will come at the sufferance of the Filipino people, to guarantee the security of Americans at home, under unequal and nonmutual accords. The Edca will financially paralyze us. (The Philippines has started spending billions of pesos for new US naval bases in Subic and Oyster Bay.)

Curiously, while America is allowed to choose bases and facilities after the Edca’s signing—a novel form of making a treaty—we pay all expenses to construct and renovate bases, and maintain them as well as US troops. Why disturb the economic tranquility of Subic and Clark, subject Manila, Cebu, and Palawan to massive depopulation when war comes, and expect us to be delirious over military junk and shells of facilities (complete with toxic waste), leftover equipment when US soldiers leave (but they will never do)?

And, of course, a US base is a base by any other name, but unlike a rose, it stinks like a political skunk. The bases’ location and duration are of no moment.

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Legal.  The local panel head Leo Batino says that the Edca is “not a treaty”; it does not require Senate concurrence. He rules it is a “military,” not political or economic, agreement.

We have always been fascinated by military pronouncements. As clear as a summer day, Batino’s position contradicts the Constitution. But the Edca will be implemented as a mere “executive agreement,” contemptuous of the unequivocal proscription in the Constitution:  After September 1991, “foreign military bases, troops, or facilities shall not be allowed in the Philippines” (Sec. 25, Art. XVIII). This is a constitutional state policy overturned by our military and foreign office.

The Edca is legally unenforceable in US territory. According to the US Supreme Court in Medellin vs Texas, any international agreement concluded without the concurrence of the US Senate is invalid in US jurisdiction, unless it is enacted into local law. Or it is self-executory. Almost all PH-US accords lack those vital qualities. Why be tickled pink by a nonmutual and unenforceable agreement?

Lastly, the Edca is a unique basing and security agreement; it does not have a criminal-jurisdiction clause. Yet jurisdiction cannot be inferred from another accord. The ambiguity heralds chaos. With the omission, the Rowes, Mommies, and Smiths will all go scot-free. Extraterritoriality is back, sustaining the US allergy to foreign jurisdiction (Rome Statute).

Truly, the Edca is a national folly or dementia. President Aquino has given it all to America (as he did to the Bangsamoro). His alter egos dream of the Edca as the crowning glory of his term (in addition, perhaps, to the Bangsamoro accord). If the gods tolerate him, he would have two legacies, denied by history to his predecessors, especially his mother.

Otherwise, not even Voltaire’s l’Infame can prevent the Bangsamoro, already a substate in the draft basic law, from giving him a dismembered republic, and can save him from becoming the worst president our country has ever had—a Nero, fiddling and singing, while his nation agonizes, shackled by the Edca.

Nelson D. Laviña is a retired ambassador.

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