MIRIAM: BOTH EDCA, VFA SHOULD BE INVALID

Sen. Miriam Defensor Santiago on Sunday renewed her call for the Philippine government to scrap its Visiting Forces Agreement (VFA) with the U.S., as she lamented that the Supreme Court failed to rise from its problematic 2009 ruling on the VFA by also upholding as constitutional the Enhanced Defense Cooperation Agreement (EDCA).

Santiago, chair of the Senate committee on foreign relations, stood by Senate Resolution No. 105, which she and 14 other senators adopted in November. The resolution said that without Senate concurrence, any treaty or international agreement, including the EDCA, is invalid.

"When the Supreme Court held in the 2009 case of Nicolas v. Romulo that the VFA is constitutional, no less than then Chief Justice Puno dissented, telling his colleagues, 'This slur on our sovereignty cannot continue, especially if we are the ones perpetuating it.' Those words resonate today, with the Supreme Court decision on the EDCA," the senator said.

Voting 10-4-1, Supreme Court has ruled that the EDCA needs no Senate concurrence because it is merely an implementing agreement of the VFA, which the Court deems a valid and effective treaty.

Santiago said the theory that the EDCA finds its validity on the VFA is flawed, as both agreements fall under the category of treaties prohibited by the Constitution, Article 18, Section 25, which states that "foreign military bases, 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."

Three requirements for validity

"The Constitution is clear that if an agreement pertains to foreign military bases, troops, or facilities, it must be (1) in the form of a treaty, (2) concurred in by the Senate, and (3) recognized as a treaty by the other contracting state," the senator said.

Santiago said the Supreme Court disregarded this test in Nicolas, where it said the VFA is a valid treaty despite failing in the third requirement--that the U.S. should recognize the VFA as a treaty as well--and again in its ruling that upholds EDCA despite failing the two other requirements.

"The EDCA is invalid for two reasons: The executive claims that it is not a treaty but merely an executive agreement, and it was not submitted to the Senate for concurrence. The flaw of the VFA, meanwhile, lies in the fact that it is not considered a treaty by the U.S.," she added.

Santiago explained that for a treaty to be binding to the U.S., it must have the advice and consent of the U.S. Senate. The VFA, she said, was submitted to the U.S. Senate not for concurrence, but only in compliance with the Case-Zablocki Act, an American law that requires the U.S. State Department to transmit to the U.S. Senate agreements not recognized as treaties.

"Therefore, the EDCA cannot derive its validity from the VFA, because the VFA is also infirm," she said, recalling her assertion in a 2009 resolution adopted by the Senate that the Philippine government should renegotiate the VFA or, if the U.S. refuses, move to abrogate the military deal.

The senator further argued that the concept of "implementing treaty" does not exist in the Constitution, which also states, in Article 7, Section 21, that "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."

"Assuming, for the sake of argument, that the VFA is a valid treaty and that the EDCA is its implementing agreement, the Constitution does not say that Senate concurrence for a 'mother treaty' extends to the children," Santiago said.

"Rather, the Constitution states, on the one hand, that any treaty--meaning all treaties--must be concurred in by the Senate, and, on the other, that no treaty on foreign bases, troops, or facilities, is valid sans Senate concurrence," she added.

Open defiance of the Constitution

Santiago also questioned the Supreme Court's premise that the president has broad powers in foreign relations, including the authority to enter into executive agreements such as the EDCA.

"It is true that the president has broad powers in foreign relations, but it excludes what is prohibited by the Constitution. The Constitution, Article 18, Section 25 prohibits an executive agreement on foreign bases, troops, or facilities," the senator said.

She added that Malacañang could have cured the EDCA of constitutional infirmity by considering it a treaty and submitting it to the Senate for concurrence.

"But instead of abiding by the Constitution he has sworn to protect, the president openly defied it by striking a deal concerning foreign bases, troops, or facilities through an executive agreement," Santiago said.

The senator also decried how the Supreme Court decision on the EDCA diminishes the treaty-making power of the Senate, a constitutional mandate the legislative chamber asserted in a resolution submitted to the Court.

"The Supreme Court contradicts the power of the Senate. The Constitution clearly states that without Senate concurrence, no treaty can become law. Now, the Court is saying that the executive may call agreements by another name in order to bypass the Senate," she said.

Abrogate VFA

While noting that the Senate has no choice but to abide by the Supreme Court decision, Santiago, who is also chair of the legislative oversight committee on the VFA, urged her colleagues to reiterate the position they took in 2009 that the Philippine government should renegotiate or abrogate the VFA.

"Philippine sovereignty, as well as the rights and dignity of its citizens suffered immensely during the 17 years of operation of the VFA. Let us assert our sovereignty and call for the total abrogation of this agreement," the senator said.

She explained that the VFA, and now the EDCA, defeat the purpose of military modernization by again making the Philippines dependent on America. "It may be argued that because of the VFA, the Armed Forces of the Philippines has not felt the need to modernize sufficiently," Santiago added.

Responding to concerns that the Philippines needs U.S. military presence to address external threats, particularly amid Chinese expansionism in the West Philippines Sea, Santiago emphasized that the VFA does not imply that the U.S. will come to the aid of the Philippines in case of a firefight with China.

She recalled that in in 2014, when U.S. President Obama visited Japan, he categorically declared that the U.S. will defend the Japanese claim over the Senkaku islands, but, by contrast, said that it "will not have a position in regard to the disputed territories in the South China Sea."