"It never crossed the minds of the US negotiators that we would elect a much smarter president"
"It never crossed the minds of the US negotiators that we would elect a much smarter president"
It seems the US has finally been trapped in it own con-game when the State Department decided to cancel the visa of Senator Ronald “Bato” dela Rosa. Accordingly, the cancellation is pursuant to Senate Resolution No. 142 sponsored by Senators Edward Markey and Dick Durbin.
The demand, however, of President Rodrigo Duterte for the US to rescind the denial of visa within one month is something next to impossible. The denial of the visa to some of our officials is pursuant to a Senate resolution. The problem however is, it is not within the power of President Trump, unless said Resolution is abrogated and/or rescinded by the US Senate, the termination of the visiting forces agreement stands as a looming possibility. In that, we could well say it was the US, not President Duterte, that fired the first shot.
Of course, the US can always insist it has all the right to cancel the issuance of visa to anybody who enters their country. However, the authors of the resolution forgot that the ban on the entry of certain officials to visit the US is on the ground that they violated the human rights or were involved in extrajudicial killings which now partakes of an unwarranted interference into the internal affairs of a sovereign state.
Maybe the US can enact laws enforceable within its own territory. But when that law seeks to deny the entry of an alien on that basis, certainly that constitutes an infringement on our sovereignty which is wholly unacceptable. It is not for the State Department to pre-empt or prejudge the guilt of a foreign citizen visiting the US, more so if that citizen has no pending case filed against him in his own country. The Philippines has every right to take all measures to protect the rights of its own citizens from political harassment like denying them of their visa.
A close reexamination of the VFA would clearly indicate that the President has the right to scrap the agreement. Officially, the presence of the US military bases in the Philippines ended in 1991. This is clear in Section 25, Article XVIII of the 1987 Constitution, to quote: “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 by the Senate and, when the people in a referendum held for that purpose, and recognize as treaty by the contacting party.”
The expiry date provided in the Constitution was not chosen by the commissioners who drafted the charter. Rather, it was lifted in the Marcos-Johnson Communiqué in September 1966 which states that “the two presidents noted that in the forthcoming Rusk-Ramos agreement, the US accepts President Marcos proposal to reduce the term of the military bases from 99 to 25 years.” Counted from 1966 to 1991, that would be 25 years or the date stated in the 1987 Constitution. The problem, however, is that US negotiators always sought to negate the termination of their military bases, viz. in violation of our own Constitution.
Specifically, the 1987 Constitution prohibits: One, the establishment of foreign military bases here as stated in Section 25, Article XVIII; and two, the stockpiling of nuclear weapons into the country provided in Section 8, Article II. These two prohibitory provisions were consistently violated by the US. Hence, after the Senate flatly rejected the bill extending their stay, the US devised a new term to gradually allow them to creep into our country. Thus, on Feb. 10, 1998, the US and the Philippines allowed the entry of the US forces under the guise of “visiting forces” agreement.
The VFA is a clear circumvention of Section 25, Article XVIII. Some believe this happened because our constitutional commissioners purposely crafted a redundant phrase in Section 25 to make possible the reestablishment of the US military bases by zeroing in on the Senate to ratify it and by asking our people to do the same in a national referendum. The presence of foreign military bases is not per se prohibited but must be ratified by the Senate and the people in a national referendum held for that purpose. In others words, foreign military bases is prohibited with a nig but!
After our approval of the VFA, we had to go through the rigmarole of formalizing it to one of a treaty. Uncannily, the members of the Senate allowed the US forces to regularly visit the country to hold military exercise without us realizing that the US purposely wanted that agreement to be dysfunctional, meaning that said agreement would only be operational if circumstances would favor them, but not in a situation where circumstances would be against them. Some say this is the application of a “double lock” provision, where moronically, we were compelled to obey what our Constitution essentially prohibits, but giving it a palatable term of an “executive agreement.” In that, the signature alone of the US President would suffice to guarantee our security.
This absurd interpretation of the VFA was accorded legal approval by the Supreme Court, and incidentally served as an eye-opener for the Noynoy Aquino administration to expand the bases without tenure by the signing of the so-called “Enhanced Defense Cooperation Agreement” on April 28, 2014. Following the same pattern of referring to it as an “executive agreement” without any categorical commitment to defend us, the visiting forces agreement became our permanent boarder, free board and lodging including the grant of criminal immunity to US soldiers. We cannot do otherwise much that Philippine Senate always wanted to poke its fingers onto anything like ratifying a treaty even if the other party refuses to do the same.
Our accession of EDCA was pathetic and miserable. It was the US that chooses the location of their bases using the facilities built and constructed by the Defense Department supposedly for the use of our soldiers, and in making sure they all face the South China Sea for quick response to any emergency. The greatest irony is that the US refuses to categorically state that in the event of conflict in any of the islands in the Spratly and in the Panatag Shoal, they will automatically come to our side, much that it is not included in the treaty that the US signed with Spain on Dec. 10, 1898 for which they paid $20 million to acquire the country.
The problem now is it never crossed the mind of the US negotiators that we would elect a much smarter president who could see and use the same dysfunctional agreement to allow him now to freely cancel the VFA even the without the consent and approval of the Senate. The US failed to see that the President could use the same dysfunctional agreement to retaliate for the denial of visa to our officials arbitrarily accused of violating human rights and for detaining a prurient senator from the opposition.
The President now has found a justifying reason like treating the VFA and EDCA as mere executive agreements, and has the power to scrap the VFA even without the consent of the Senate on the ground that the agreement was never ratified by them. There is no compelling reason why we have to follow the procedure required by our own Constitution. We cannot enforce an alleged agreement that is not binding nor being enforced by the other party. In this sense, Duterte is a constitutional maverick because he has the guts to justice to the provision in our mangled Constitution.
There are no “buts” and “ifs” to the decision by the President to order the overstaying US visiting forces to leave. Recent history remains vivid to him; that despite the surrogate exhibition of loyalty by Estrada in approving the VFA, the US did not a spare him a sense of gratitude by not supporting the horde of yellow hypocrites calling for his ouster. The US and its cohorts today, made up of their usual clappers from the oligarchy and the Church, are the ones leading in agitating the ouster of the President with their rowdy mascot from the Left caught off guard in the decision by the President.
rpkapunan@gmail.com
