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

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A:  It is superseded by the 1987 Constitution and both our and American jurisprudence uphold the super-cession theory.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