EDCA Primer No. 1 by one of the 1991 Malevolent/Magnificent Twelve? (Updated)

04 May 2014

By RENE A.V. SAGUISAG
Work in progress

​Q1:  What is required for an international agreement to be valid?*

A:  Sec. 21 of Art. VII of the Cory Constitution says: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.”

​Q2:  Is the Enhanced Defense Cooperation Agreement (EDCA) constitutional?

A:  Permit me to doubt. Sec. 25 of Art. XVIII of the same Constitution says foreign “troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate . . .and recognized as a treaty by the other contracting State.”

​Q3:  How long will the EDCA last?

A:  Thereunder, INITIALLY for ten years but there is automaticity in extensions, so that my apos, eldest not quite six, may be affected.

​EDCA says it ‘shall have an initial terms of ten years, and thereafter, it shall continue to be in force unless terminated by either party by giving one year’s notice through diplomatic channels. . . .”​

​​Q4:  As a member of the Malevolent/Magnificent Twelve who ended ​the presence of foreign troops​​​​ of more than 400 uninterrupted years, you (RAVS) keep saying that EDCA is a rotten egg, can you lay a better one?​

​A:  Let me try. The American should be asked to return the Bells of Balangiga, now in Fort Warren, just outside of Cheyenne, with another in South Korea. These trophies are Catholic Church’s property taken in 1901. Then they should be asked to put troops and facilities in Ayungin and Scarborough in their new bases there. We should be ready to die to the last American.

Q5: Why allow them to use our own bases?

​ A:  They should build their own. In Ayungin, Scarborough, off Batanes, and the like. ​

​Q6: We are weak; can we defend our territory alone?

A: It is a question of heart, as shown by the Vietnamese in defeating the French and the Americans. And the U.S. and Japan will help, if it would be in their national interests to do so. EDCA or no EDCA. No permanent friends or enemies, only permanent interests. Japan was our foe in WW II when we were one huge military base of the U.S. Japan successfully invaded us anyway.

​​Q7:  But, doesn’t EDCA only implement our Mutual Defense Treaty of 1951?

A:  It is superseded by the 1987 Constitution and both our and American jurisprudence uphold the super-cession theory.

Q​8:  What case law?

A:  E.g., Edye v. Robertson, 122 U.S. 580 (1884) illustrates the view that Congress has the power to override treaty obligations.​ What more with the people ratifying a Constitution? Edye is one of a group of nearly contemporaneous decisions toward the of the 19th century which asserted the supremacy of federal statutes over prior treaties, which have no superior sanctity. H. Steiner and D. Vagst, Transnational Legal Problems 587 (1982, the duo were my team teachers in the subject at Harvard Law in 1967). Our own case law, beginning with Ichong v. Hernandez, 101 Phil 1155 (1957) – all the way to the 2002 case of Mark Jimenez – has language to the same effect but all in the nature of obiter, our Supreme Court having found no conflict between a treaty and the local or municipal law.

Hometown. Where we have a world body or an arbiter, the adjudicators will follow “the cardinal rule that provisions of municipal law cannot prevail over a treaty.” Steiner and Vagst, supra. But our Supreme Court should follow the obiter in Ichong, Garcia, Hechanova and Purganan (Jimenez) in light of our own best national interests.

Q9:  Why be sensitive to the presence of U.S. soldiers?

A: Given the history of abuse from the time Prez McKinley knelt in the White House and was told to Christianize us. The GIs sang Oh, The Monkeys Have no Tails in Zamboanga. Racist. Gen. Smith ordered everyone above ten killed and turn Samar into a “howling wilderness.” It was only in 1967 when the U.S. Supreme Court allowed interracial marriages. In May, 2014, I visited the Victoria Manalo Dravies Park in San Fran. She won two gold medals in London. She had to conceal her being half-Pinoy to be able to practice in pools for whites only. She came home and connected with her roots – to acclaim – in Orani, Bataan where her musikero father had hailed from.

Q10: What about other foreign troops?

A:  The Japanese would probably raise questions also if only because of the comfort women still seeking justice. The Koreans have a battalion in Cebu helping Yolanda victims. No static. The Japanese, 110V. The Kanos, 220V.

Q11:  Would the Malevolent/Magnificent Twelve vote NO! today?

A:  I rightly don’t know. 9/11, which killed 16 Filipinos, may have introduced a new dimension. But, there seems to be no threat now from Al Qaeda affecting us today with a sense of immediacy. The Americans have helped in Mindanao against Fundamentalist Talibanic elements. No static.

This Bedan is now affiliated with Ateneo for a Better Philippines,  at the instance of Au-au Pijuan.

R.A.V Saguisag
Saguisag & Associates
4045 Bigasan Street, Palanan
1235 Makati
551-6350/833-4140

8 Responses to EDCA Primer No. 1 by one of the 1991 Malevolent/Magnificent Twelve? (Updated)

  1. May 5, 2014 at 11:29 am
  2. May 5, 2014 at 1:39 pm
    manuel buencamino

    I can see where Saguisag is coming from – 400 years of uninvited foreign troops the abuses they committed racism in America etc etc. The situation now is that those troops are invited and their presence here brings us closer to Saguisag’s wish that we defend our territory to the last American.
    His legal opinion vs the administration’s legal opinion is something for the SC to decide.

    As to Q10 – Other foreign troops are okay but not Americans? Maybe we should just invite the Chinese and save ourselves a whole heap of trouble.

  3. May 5, 2014 at 1:41 pm
    manuel buencamino

    Joker the Undead has an interesting opinion that I’m sure the SC will weigh accordingly.

  4. May 6, 2014 at 10:50 am

    “EDCA dissected (1)” by Romeo Y. Lim http://www.malaya.com.ph/business-news/opinion/edca-dissected-1

  5. May 6, 2014 at 11:00 am

    PH-US pact ‘an invitation for surveillance, unregulated communications, drones’ http://newsbytes.ph/2014/05/04/ph-us-pact-an-invitation-for-surveillance-drones-and-unregulated-communications/

  6. May 6, 2014 at 11:36 am

    “Only permanent interest: agreed locations” by Malou Tiquia http://www.manilatimes.net/only-permanent-interest-agreed-locations/94258/

  7. May 6, 2014 at 11:42 pm

    “A mockery of the Constitution” by Ellen Tordesillas http://www.ellentordesillas.com/2014/05/06/edca-a-mockery-of-the-constitution/

  8. May 7, 2014 at 2:39 pm
    manuel buencamino

    Angela,

    As with any agreement, neither gets 100 percent of what it wants. Basically the US wanted the rudiments of forward basing, prepositioned materials etc. That is US strategy in line with a defense assessment made over a decade ago. The Philippine government for its part has stated what it expects/wants from the set-up. Over the next ten years we will see whether both parties want to continue with the arrangement.

    The argument against the agreement is this: The US got what it wants, the Philippines got promises. It’s not as simple as that.

    It is an agreement between two unequal states. Practically any agreement we have and will enter into with many countries will be between unequals, more often than not with a more powerful state and seeing the game that nations play, we will always end up holding the short end of the stick. That’s a fact we have to live with until we become big enough to get the longer end.

    We play with what we’ve got, we do our best to get the most out of what the more powerful is willing to give ika nga ni Thucydides more than a thousand years ago.

    So I would appreciate an assessment of the agreement based on reality, not on a fantasy that we entered into an agreement between two equal powers and that anything that reminds us that we are the weaker party must be obliterated from the agreement.

    Absolutely bang walang pakinabang ang agreement? Absolutely bang walang mapapala with an alliance with the US? Do we have other options within the next ten years? I read the antis and wala akong makitang binigay nilang alternative to the agreement that was signed. Magbigay sana sila ng mas magandang paraan.

    I’m not fully satisfied with the agreement either kasi siempre mas maganda kung kaya natin tumayo ng mag isa, kung hindi natin kailangan manghingi ng tulong, kung hindi tayo kailangan umasa sa bulok ng gamit.

    Sana, sana, sana. Pero, pero, pero. Kung sana walang “pero”, “but” at “however” pag tayo ay nagpaplano at naghahanda para sa atin national defense, diba?

    So anong alternative to alliance with the US and its friends, habang wala pa tayong armas? Di naman pwedeng neutrality, nakita na natin ang nangyari sa Melians. Ala Switzerland sana, pero ang dami nang ibang depository ng wealth, hindi na unique ang Switzerland, wala ng cartel na humahawak ng lahat ng kayamanan ng mundo, ang dami ng mayaman sa maraming lugar at ang pera nila nagkalat sa balat ng lupa.

    Neutrality is not an option for us, not when someone is threatening our territory. Neutrality is not a one sided option, it requires consent by others.

    Kailangan lumagay tayo. Saan tayo lalagay?

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