IN diplomacy, as in chess or any other sports for that matter, the professional player graciously yields when he sees he has lost the game. US Secretary of State John Kerry must have realized there was no way he could talk President Rodrigo Roa Duterte out of his decision to sit down with China, following the Philippines’ July 12 win at the Permanent Court of Arbitration, at The Hague, on Manila’s South China (West Philippine) Sea dispute with Beijing.
Even while still in Vientiane, where he attended the Asean Regional Forum, the East Asia Summit ministerial conference and the Lower Mekong Initiative Ministerial Meeting, and had conversations with Chinese Foreign Minister Wang Yi, Kerry was already talking about the claimants to the disputed areas “turning the page on past confrontations.” He expanded on this in Manila after his meeting with PDU30 and Foreign Secretary Perfecto Yasay, Jr.
The more prudent course
China has refused to recognize the tribunal’s jurisdiction and the validity of its ruling, and the Asean has refused to take the Philippine side in its just-concluded foreign ministerial meeting. On his part, PDU30 has decided that instead of playing hardball and risking confrontation, as proposed by so many outsiders, the more prudent and productive course would be to engage China in the much broader area of economic cooperation, trade and investments.
This is where our diplomacy is now heading. PDU30 named former President Fidel V. Ramos as his special envoy, even after Yasay had said there would no longer be any talks with Beijing. At one point, PDU30 threatened to name former DILG Secretary Rafael Alunan 3rd, if the 88-year-old statesman failed to accept his assignment. FVR came on board after reportedly consulting with his wife and doctor; this prevented DU30 from appointing the former senatorial candidate who, under the law, may not serve any government position (even as a deputy to FVR) within one year after losing in the election.
Kerry changes the tune
Kerry must have seen DU30’s resolve to pursue his own diplomatic game plan and also the merit of the same. So, instead of adding his voice to the numerous US officials—Department of State Counselor Kristie Kenney, Sen. Chris Murphy, Sen. Brian Schatz, Rep. Ted Deutch, Rep. Donna Edwards, Rep. John Garamendi—who had come to try to persuade DU30, through Yasay, to shun talks with Beijing, he declared support for the proposed conversations. This was a game-changer.
While the US “expects the parties to the dispute to comply with their obligations under law,” Kerry said the US supports “mutually acceptable solutions” to the dispute, including negotiations between Manila and Beijing, and hopes to “see a diplomatic process between and among the claimants, without coercion or use or threat of force.”
Kerry underlined the value of talking directly with Chinese leaders when, in his meeting with Wang at the National Convention Center, in Vientiane, he expressed appreciation for “the serious way in which we have been able to talk to President Xi (Jinping), with you, with State Counselor Jiechi, and be able to have a successful Security and Economic dialogue, which we did early in the summer.”
An initial win
This was a genuinely positive boost to Philippine-US relations, and an initial victory for PDU30’s move to conduct a foreign policy “independent” of Washington. DU30 immediately convened the National Security Council to discuss the parameters of FVR’s mission. All four living former Presidents—Ramos, Joseph Ejercito Estrada, Gloria Macapagal Arroyo and B.S. Aquino 3rd—and Congress leaders were in attendance; the Senate had to cancel its official session for the day to allow its top officials to attend. It was the first time the Council was convened in years.
What could happen in Beijing
After the Council has formulated the guidelines for FVR, we cannot tell him what to do or say in Beijing. But I would think it is entirely misplaced to expect him to try to compel the Chinese to recognize the arbitral ruling, which they have refused to recognize. It seems fair to expect Ramos to say that this ruling exists, but since it is the very point of conflict, which could raise tension and prevent the two parties from talking except to exchange political pyrotechnics, they must now find common ground so that their conversation could proceed.
I would imagine that neither party could or should dictate the terms of reference. The most important thing is for the two parties to be able to tell each other, “We want to talk instead of fight, what do we talk about?”
US earns goodwill
In supporting DU30’s decision to sit down with Beijing, the US gained a lot of goodwill even from its usual critics. Kerry did not leave Manila unrewarded, either. Right upon his arrival, the Supreme Court en banc, by a vote of 9-4, affirmed with finality the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the US. In the language of its fiercest critics, the EDCA, which allows the US to deploy its troops and facilities inside Philippine several major military camps and bases, has effectively turned the country into one large US military base or aircraft carrier.
Even from the perspective of the Left the SC ruling sufficiently assures Washington that DU30’s conversations with China are not likely to alter or water down Manila’s political and security ties with the US. This is not to say though that the EDCA issue will now quiet down forever. Although the SC is the court of last resort and is always right even when it is wrong, not enough lawyers are prepared to say the decision is right.
The constitutional violation is so patent and so gross that there is no way one could assimilate it without violence into one’s system. As a nation of lawyers, I cannot see how our law schools and law professors, if they read the Constitution as it is written, will teach the young about the correctness of this particular verdict. The most they can say is, the ruling is wrong, but we must respect the Supreme Court always, as a matter of principle.
The petition, filed by former Senators Rene Saguisag and Wigberto Tañada, and Bayan Muna lawmakers Neri Colmenares and Carlos Zarate, had argued that in taking the form of an executive agreement rather than a treaty concurred in by the Senate, EDCA violated Sec. 25, Article XVIII of the Constitution. This is so clear.
The section provides: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting state.”
Saguisag and Tañada were among the 12 senators who rejected the late President Cory Aquino’s 1991 treaty, which had sought to extend the term of the US bases by another 10 years, after the expiration of the original bases agreement. Her son B.S. Aquino 3rd must have been so afraid that his “own” senators would reject EDCA, just as “Cory’s senators” had rejected her treaty, that he decided to shut out the Senate, confident that he would be backed by the Court which he had destabilized by removing its Chief Justice and replacing him with his own.
In her ruling, Chief Justice Maria Lourdes Sereno argues that the EDCA is but an implementing agreement of the 1998 Visiting Forces Agreement (VFA) and the 1951 Mutual Defense Treaty (MDT). With all due respect, the Chief Justice seems to be getting her data from Mars. Or she must believe she is talking to a population that had just landed from another planet. The facts are rather simple and well known to almost every journalist.
After the 1947 bases agreement expired and the bases pulled out, the MDT was the only defense treaty that remained. This allowed, in principle, the temporary visits of US troops for military exercises. But there was no agreement that defined the terms of their short-term visits and the rights and duties of the visiting forces. This was the reason the VFA was concluded between Foreign Secretary Domingo Siazon, Jr. and US Ambassador Thomas Hubbard—as an implementing agreement of the MDT.
An implementing accord?
This is not theory; this is fact. And I know it firsthand because, together with the late Sen. Blas F. Ople and then-Sen. Rodolfo Biazon, I carried the main burden of the debate on the floor of the Senate in defense of the agreement. I defended the VFA not as a stand-alone treaty under Sec. 25, Article XVIII of the Constitution, but as an implementing agreement of the MDT, the mother treaty. Now, Sereno is telling us—and the rest of our posterity—that the EDCA is but an implementing agreement of an implementing agreement?
This is as absurd as the position taken by then-US Secretary of State Hillary Clinton, now the Democratic Party’s candidate for President of the US, and Philippine Foreign Secretary Albert del Rosario, who has recycled himself out of retirement in order to kibitz on the South China Sea debate, that they could amend the purposes and scope of the MDT for the next 60 years, just by signing the so-called Manila Declaration on Nov. 16, 2011 on board the USS Fitzgerald in Manila Bay—reminiscent of the Japanese military surrender to the Allies on Sept. 2, 1945 on board the USS Missouri in Tokyo Bay.
Even absurdity must have its limits, and our learned justices must not be afraid to recognize those limits.
Two EDCA issues
There are two issues concerning EDCA. One is political, the other constitutional. The political responds to the question: Is the government in favor of enhanced US military presence in the country or not? This is for the executive to decide. This being a purely political question, the Supreme Court will have to throw out any petition questioning the wisdom thereof.
But once the executive has decided an enhanced military presence would be good for the country, the only question that remains is whether the agreement entered into is in full accord with the Constitution. This is the case of EDCA. So many Filipinos believe EDCA is a correct political decision. But they are compelled to oppose it because Aquino’s executive agreement, which has taken the place of a treaty, is a clear violation of the Constitution. It is not fair that just because people support the idea they have to turn a blind eye to the violation of the Constitution.
Referendum an option
And yet, with the High Court’s final ruling, there is no longer any legal way of correcting this error. Perhaps the only way to do so is to submit the issue to the people in a national referendum, pursuant to Sec. 25, Article XVIII of the Constitution. If the people confirm it, then US-Philippine military cooperation would be set on unshakeable ground. But this is not without its risks; if the people reject it, then we would have terminated our historic military cooperation. It is now for those who are talking of amending or revising the Constitution to consider what steps to take.
DU30’s decision to talk to Beijing is in full accord with his decision to pursue a comprehensive peace with all armed elements in the country—the CPP/NPA/NDF and Moro rebels. The US support was obviously the least DU30 was expecting from the nation’s closest ally. Kerry had no choice but to deliver.