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A: It is superseded by the 1987 Constitution and both our and American jurisprudence uphold the super-cession theory.
Q8: 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.
Saguisag & Associates
4045 Bigasan Street, Palanan
Category: rene saguisag
MANILA, Philippines—Three of the senators who rejected the renewal of the Philippine-US bases treaty in 1991 on Saturday expressed concern over the constitutionality of the new Agreement on Enhanced Defense Cooperation (AEDC) that is expected to be signed between the two countries during the visit of US President Barack Obama this week.
In a statement, former Vice President Teofisto Guingona Jr. and former Senators Rene Saguisag and Wigberto Tañada demanded that the agreement be scrutinized by both the Senate and the public. The statement was also signed by several lawyers and civil society members.
media is plural for mediocre, rene saguisag says in his manila times column on the same day that mark robert b. baldo in a letter to the inquirer editor decries the failure of media to level-up the public debate on the RH bill.
A cursory look on the articles printed in this broadsheet shows this to be a recurring theme: luminaries using the infidelities of some Catholic priests in Europe to discredit the Church; some citing the political affiliations of some bishops; and others, presenting flawed accounts of Church history. This is a mistake because no longer do we hear mention of arguments by both parties.
… Media inevitably shape the public debate. I am not talking here about whether the bill should be passed or not, or whether the media should frame it in such a way that it would be passed or not. I am simply talking about how to frame the debate in such a way that it would stimulate productive discussion rather than a stirring drama about a declining institution in Philippine society.
indeed, na-sidetrack, nagpa-sidetrack, na lang ang media sa rizal vs. damaso drama ni carlos celdran. easier naman talaga to go with the flow, kahit paatras, than to move on, against the tide, to the more difficult formidable challenging task of helping along the RH discourse toward a clear resolution.
in Some issues about the RH bills fr. joaquin bernas writes:
When does human life begin? We probably are all agreed that man must not destroy human life. Our Constitution protects life “from conception.” There is some indication in the deliberations of the 1987 Constitution Commission that this means “from fertilization.” But there are contrary views. Who will decide which view is correct?
granted, for the sake of no-argument, that the philippine constitution means “from fertilization” and that congress will so concur, what then? logically, it should mean the end of all debate because as with the natural family planning method (no sex during ovulation), with artificial contraceptives no fertilization happens, which means no life is destroyed, so condoms, pills, and IUDs should be okay-all-right.
and yet and yet and yet, priests and other rabid pro-lifers continue to insist that birth control pills (that prevent ovulation so no egg is produced for sperm to fertilize) are abortifacients. nakakaloka. how canyou even begin an intelligent discussion??? for the longest time i couldn’t figure it out. why the lying. why the dishonesty. why the misinformation. until suddenly it dawned on me, after reading this, still from fr. bernas:
The determination about the beginning of human life will also be relevant to the debate on abortion. Clearly abortion is prohibited and penalized by law. But when does abortion take place? At what stage of the reproductive process will interruption be considered an offense against life? At fertilization or only after implantation? Are there birth control devices or pills which are abortifacient? If so, in what way? There is debate about the abortifacient effect of some birth control means. Who is to settle this debate—Congress? The Courts? Science? the Church? The ralliers? I understand that the various pharmaceutical and medical literature on this are conflictive.
the questions tell me that fr. bernas knows more than he’s telling, much like a parent who has a hard time talking to a teen child about sex because the openness and the info could be misconstrued as license to have sex. in this case the information, which is most likely new to many many filipino women, rich and poor, young and old, could be misconstrued as license to interrupt the reproductive process by preventing the implantation of a fertilized egg, which apparently he equates with abortion. i totally disagree.
just to make sure i have it right, i emailed my balikbayan brother dr. godofredo “butch” stuart, now based in tiaong, quezon, who is my first resource on contraception. his response:
Fertilization occurs when sperm-meets-ovum, 200 to 500 million sperms in the ejaculate, discharged into the vaginal vault, embarking on journey up the vagina, up the cervix. Only less than a thousand survive the swim and make it to the fallopian tube, into the “last lap” of their swim. These sperms have fertilizing capabilities that last only for 72 hours, sometimes 96 hours.
And once a month, normally, one mature egg is released from the ovary, fertilizable only for 24 hours. Into the fallopian tube it begins the journey, where it is met by one of the surviving sperma. So fertilization occurs, resulting in a zygote.
The germinal stage (0 to 2 weeks) begins when the zygote journeys down the fallopian tube to the uterus, reaching the uterus in 4 to 5 days, floating freely in the uterine cavity for several more days, finally adhering to the uterine wall about the 8th day after fertilization. By the 12th the egg is firmly implanted. And by the end of the second week the uterine wall has completely surrounded the newly developing organism.
This is the basic arithmetic on sperm and ovum life spans, and how the implantation happens many days later after fertilization. And how morning-after contraception works in the schemata of the germinal stage and implantation.
check out his website stuartxchange.com where he has a page on emergency post-coital contraception. between fertilization of the egg and its implantation in the uterus, there’s a 7-day window during which contraceptive pills taken in certain doses effectively prevents implantation, which is how the morning-after pill (banned here) works.
the question is, when a woman resorts to emergency contraception, is that abortion? i don’t think so. while it is true that a fertilized egg has life, still it’s NOT A VIABLE LIFE, not until implantation.
DOC BUTCH : Yes, non-viable until implantation. Alive, yes, as in in-vitro fertilization, alive in the laboratory milieu, but still needing the uterine implantation to enter a sustaining nutritional environment.
which brings me back to fr. bernas’s questions: when does abortion take place? answer: certainly not when a woman resorts to emergency contraception “the morning after” sex, because a fertilized egg (if at all there is one) is not yet a viable life-form. and no, BIRTH CONTROL PILLS ARE NOT ABORTIFACIENTS: once a fertilized egg has implanted onto the uterine wall, no amount of these pills can dislodge or remove it from the uterine wall. (only real abortifacients can dislodge, abort, a zygote, but that’s for another blog.)
of course pro-lifers would disagree with me till kingdom come. but try googling it and you will find that there are as many arguments for fertilization, as there are for implantation, as the beginning of human life. so fr. bernas asks: who is to settle the debate re the alleged “abortifacient effect of some birth control means” — congress? the courts? science? the church? the ralliers? answer: NONE OF THE ABOVE. i say THE WOMAN DECIDES, not the priests or the opus deists.
DOC BUTCH : From opposing ends, it will never be answered or agreed upon. Yes, in the end, it should be the woman’s right, sole and inalienable, unburdened by archaic church edicts and impotent male political will. Too, a daunting responsibility for “educators” with the burdensome task of educating the womenfolk. And how to make the information available and comprehensible to the masa, who still resort to coat-hangers, grapevine pharmaceuticals, and dangerous herbal concoctions.
An estimated 560,000 women in the Philippines in 2008 sought abortion involving crude and painful methods such as intense abdominal massages by traditional midwives or inserting catheters into the uterus, said a report by the New York-based Center for Reproductive Rights.
which brings me back to the media, which have the power and the means not only to shape the debate but to make available the information and educate the womenfolk, thereby “to change the status quo of high rates of infant mortality, maternal deaths, and abortions. It is a moral imperative that such dehumanizing conditions should not be allowed to continue.”
DOC BUTCH : Media seems to kowtow to the powers that be. It seems like institutional fear. No cojones to challenge the church on such matters. Or perhaps everyone of note in media went to the same church-sponsored Sex Education 101. Masyadong malakas ang simbahan.
but is it just fear of excommunication and hellfire, or is it also a lack of critical thinking, and not caring enough about the issues that matter? media is plural for mediocre? yes, all of the above.
The framers could have said the position of Chief Justice (CJ) should be filled up immediately and that only the CJ could swear in a Prez. They did not. They said any judicial vacancy should be filled up within 90 days, which I suggest is even merely directory, not even mandatory. No way we can mandamus a Prez.
The case of Justice Minita Chico Nazario, where the vacancy was filled up six months later is instructive; she twisted in the wind that long before finally taking her oath and becoming a credit to the SC.
It took more than six months for CJ Querube C. Makalintal to replace CJ Roberto R. Concepcion. Thus, the virtue of collegiality. It also shows that when the Constitution gave the Prez 90 days to name a new Justice, the lack of urgency was seen. May the SC order the JBC, headed by the CJ?
When Marcos won, if my memory is true, I had at least two excellent teachers who had been named to the bench just before Macapagal himself was to step down. Seen as more than qualified, maybe, but no one in the judiciary, or elsewhere, is indispensable. The two had to go. In May, 1982, for a working week, we had no Supreme Court at all! All told, vacant days added together, we had no CJ for years. The nation moved on. There simply was no fire.
Now we have a golden chance for a transparent process in lieu of arcana. Justice Rene Corona must disclose in open hearing his suspicion that Justice Tony Carpio was out to smear him. Tony denied the charge, corroborated by Nanding Campos, who Rene had said tried to influence him improperly by using three ex-Justices to approach him (which those of us of the old school us would never do; it just was not and should not be done).
GMA acknowledged on December 30, 2002 that she divides our people. Now, she plans to continue in public life, and some salivate. Why? Are these but the noises of democracy we were glad to have again in 1986 after 15 years of coercive elimination of dissenters, leading to Jackson’s unanimity of the graveyard?
Charito Planas I first met in Washington, D.C. in 1982. She has chosen to be with GMA. The right to pick we cannot question, be it elixir or poison we choose. But, as in the case of Gary Olivar, what does she have to say about the Morong 43? The duo both courageously fought martial misrule. May God bless them both. But we in the human rights community need to hear them on the 43.
FOCAP (like our friend, Tony Lopez) could be naughty. Last Tuesday it held a forum entitled Who Will Fix the Mess? I saw no one take issue with the tendentious theme. All prez wannabes said No to operating the Bataan Nuclear Power Plant. Bravo! A Korean firm said it would need a billion pesos at least, which may yet double, or triple, to repair and upgrade it. But, we are pasable-OK-na-puede-na Pinoys. I hope Prez Cory and I would no longer be blamed for not operating the plant in 1986, when Chernobyl made it easy to mothball it. But, I had not realized I was so effective chairing the Cabinet and Senate Committees on it that here we are, 24 years after the event and no Prez or wannabe is for operating it.
This fact emerged with crystal clarity in the FOCAP affair. Nick Perlas was with me in the 1986-1992 effort.
Even Engineer FVR would not dare put the nuke plant on line (his home province is Pangasinan; I married one from there and it now welcomes nuke power in a nation where Murphy’s Law—if anything can go wrong, it will—prevails in rampancy: I am not sure we can be like Russia or Japan ably dealing with Chernobyl or Toyota’s recall). We need new energy plans. We need to know from the bets what their plans are, on top of their other sales talk, to pay public servants above the level of corruption by laying down the economic foundation of honesty. Dick Gordon would want school teachers to get P40,000 a month, less than the additional bonus of House employees last Christmas given by Congressmen: how much did they get for themselves?
There must be a better deal for employees, whether public or private, for them to compete for admission into public service.
On specifics, what do they have to say on senior citizens discounts where an employer’s profit is marginal and who will go under with the additional discount? Is this not confiscatory? Any subsidy? Else, the employer may fire employees to salvage the ailing business. There must be a health program too so one with a dollar (less than P50) can have dialysis monthly. More than Motherhood spiels we need from the leading bets. Those who have no chance should withdraw, to improve the chances of even a bad bet; else, by hurting him, we may get a worse, or even the worst one, in lying, cheating and stealing. Balzac said that behind every great wealth is a great crime. How many of the bets have no great wealth?
Anyway, I need to see in the text of the 1987 Constitution, or maybe, someone can show us that, in the debates, the intent was that in the judiciary “midnight appointments” are allowed, contrary to what the SC has nixed. I know how careful the JBC and SC are in observing the no-appointment rule during the critical two months. That was why the promotion of some RTC Judges created a hassle some years ago (even if admittedly, the nominees were good); there was static about antedating to make it appear as not falling within the interdicted two-month period. No transparency. Shielding the nomination process from scrutiny should go. If it would need a constitutional change so be it. Back to the Commission on Appointments? Noynoy I don’t recall ever having opposed any change in the 1987 Consti. He and his Mom, along with millions, simply wanted to do the Right thing in the Right way at the Right time for the Right reason.
Nothing says the CJ should administer the oath. Cory and Doy were sworn in on February 25, 1986 by “mere” Associate Justices, who used the rather unconventional formulation I rushed the night before in a rinky-dink typewriter. Indeed, an ordinary notary public can administer it. When we took power in 1986, I had no time to take it but then it was a risky revolutionary government we had inaugurated. Later, in a more normal time, I took it before a notary. It could not be said that I violated my Four R’s.
Today, what is not being violated in the violent time in the vilest possible way?