Let’s not beat around the bush on the Enhanced Defense Cooperation Agreement (EDCA) that the Aquino administration surreptitiously negotiated and sealed with the Obama administration on April 28.
From the very beginning, President Aquino, on the advice of his foreign affairs and defense secretaries and his legal team, never planned to consult the Senate on his decision to discuss with the US government the feasibility of a defense cooperation agreement to strengthen security relations between our two countries, and expand on the understandings regarding the 1951 Mutual Defense Treaty.
Why unilateral and no consultations
Aquino was impelled to take a unilateral approach to this major policy initiative for a number of reasons, some of which were totally craven and misguided:
First, he felt handcuffed by the strict provision of the Philippine Constitution, Article XVIII, Section 25, 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 party.”
The crushing defeat in the Senate of his mother, President Corazon Aquino, in her efforts to renew the RP-US military bases agreement in 1991, weighed heavily on his mind. He did not want to risk emboldening the present Senate to demand bribes to toe the line and suddenly adopt a principled stand.
Second, having boxed himself into a corner by adopting a provocative, noisy and hostile stance toward China in regard to disputed shoals and islets in the South China Sea, Aquino needed to back up his position with rhetoric, however hollow, that his government was prepared to fight to the last Filipino for these shoals and islets.
His solution was to induce the United States to sign a defense cooperation agreement with our government, under which it would commit to recognize Philippine rights to the disputed territory and defend them accordingly.
Third, the decision of the Obama administration to adopt a rebalancing and pivot strategy toward Asia presented an opportunity for the Philippines to become a player in the unfolding security scenario in the Asia-Pacific.
By supporting America’s pivot strategy, Aquino could finesse a formula for modernizing the woeful state of the Philippine armed forces and its defense apparatus.
Fourth, Aquino and his advisers calculated that the Senate, having been battered senseless by the pork barrel scandal and the still unfolding bribery scandal surrounding the Corona impeachment trial, would not protest too much for being bypassed in the EDCA issue. The costs in terms of presidential largesse would be reasonable.
More wishful than realistic
The basic wishfulness of these calculations and expectations should have become manifest with a tough-minded assessment of the proposed Enhanced Defense Cooperation Agreement, and the negotiating difficulties in getting a deal done. But the review never happened.
With hard-nosed negotiators batting for the American side, and amateurs negotiating for our side, a half-baked and one-sided agreement was fashioned. And its shortcomings have quickly come to light with the visit of President Obama and the fading of the hype manufactured by Palace propagandists.
Despite the dogged efforts of our panel, it did not succeed in inserting in the agreement US recognition of Philippine rights to the shoals and reefs in the South China Sea.
Obama himself administered the crushing blow when he declared that the US has no goal to counter or contain China.
Coming from Japan, where he unequivocally declared that the US would defend Japan’s interests in the disputed Senkaku Islands, he did not offer President Aquino an equivalent declaration regarding our interest in certain real estate in the South China Sea.
The most he allowed was a call on China not to use force in addressing territorial disputes.
The inequality of the deal quickly surfaced once hard-nosed analysts looked at the fine print of what the Philippines and the United States were giving away or getting.
For hosting US troops and military facilities in its bases, the Philippines does not receive in return any firm commitments from the US, be it in terms of assistance in modernizing its military or in defending national territory.
The silence on the constitutional provision will surely be shattered because for sure any number of Filipino groups and individuals will go to the Supreme Court to challenge the constitutionality of EDCA.
Finally, the presumed quiescence of the Senate is a false hope. Resuming its session on May 5, the Senate will hear a good number of senators demanding a full review of the executive agreement. Already, Sen. Miriam Defensor-Santiago, chairman of the Senate Foreign Relations committee, has faulted the administration for bypassing the Senate.
In criticizing or defending EDCA, it is important to keep in perspective how foreign policy is made under our democratic and constitutional system.
Under his executive powers, the president is the chief foreign policy maker. The foundation for it in the provision that he negotiates treaties and formal international agreements with other nations—with the approval of two-thirds of the Senate.
While the requirement of Senate approval for treaties is meant to check the president’s foreign policy power, the president can get around the senatorial check by issuing an executive agreement directly with the heads of state of other nations.
The executive agreement, in the US, in our country and other states, allows the president the flexibility of negotiating, often in secret, to set important international policy without creating controversy or stirring up opposition.
In the United States, for example, US military bases set up in Egypt, Saudi Arabia, Kuwait and other Gulf states were the result of executive agreements.
In our own recent experience, the visiting Forces Agreement with the US was an executive agreement.
One revealing research provided me this information. Executive agreement is used frequently by the US government. 10,620 executive agreements were issued between 1969 and 207,compared to just 946 treaties.
Significantly, our Constitution is more specific than most about the Senate’s power to advise and consent.
Constitutionalism is an issue here
When all the issues rise to the surface with the forthcoming debates, the nation will discover that what is finally at issue in this debate is not the threat of a rising and powerful China, or the fundamental security of our people and our country. What is equally at stake is the principle of constitutionalism in the conduct of government in our country.
Constitutionalism, simply stated, means that Philippine governance is rooted in the words and meaning of our Constitution. The president and Congress are restrained from doing anything they please by the essential and necessary conservatism of the Constitution. Neither is at liberty to interpret their mandates at will, because all their powers and prerogatives are specified by the Constitution. They cannot rise above the power that created them.
It is best that the issue of constitutionalism should come to light at this time, because the Aquino administration has shown a disturbing majoritarian tendency to embark on policy initiatives on its own, without regard to our system of separate powers and check and balance.
In his determined and laudable desire to forge lasting peace in Mindanao, he has taken a path that may lead to the dismemberment of the national territory with the creation of a Bangsamoro substate.
In his desire to have a Supreme Court that would act favorably on cases and issues vital to the success of his administration, Aquino has orchestrated the impeachment of a sitting chief justice.
Now, in his desire to find a figleaf for his posturing against China, he has embarked on the writing of an enhanced defense cooperation agreement with the United States.
President Aquino needs to be reminded of this important point: In May 2010, he was elected by a plurality of votes cast in the presidential elections of our republic. He did not become thereby the Philippine republic himself. And he did not rise above the Constitution, which he swore to honor and protect at his inauguration.