"Do our senators want to go back to the days of imperial hegemony?"
"Do our senators want to go back to the days of imperial hegemony?"
It never seeped into the brain of those senators who filed a petition to question the decision of President Rodrigo Duterte to scrap the Visiting Forces Agreement that doing so would amount to demanding that the country move back its epochal march of history. This I say because the issue about the validity of a treaty or executive agreement revolves on the sovereignty of this Republic as an independent state. The decision, if one might say, is higher and beyond the scope of constitutionality as it resides on the judgment of the Filipino people about the course the country would take.
The decision elevated to its highest level our independence since the giving of that make-believe freedom in 1946; that it can never be stultified or derogated on mere questions of law. Every state has the right on what course to take limited only on what would constitute a threat to international peace and security. This is a universal postulate why nation-states exist and why the United Nations acts to ensure universal peace and harmony.
Paradoxically, the petition filed by Senate President Vicente Sotto III seeking to determine whether the decision of the President is Constitutional is most ludicrous. Obviously, that could result in the court deciding to allow the return of our colonizers disguising themselves as allies but in reality, they are just out to secure their own interest in this part of the globe.
Yes, Section 5 (2) (a) of the Constitution provides that the Supreme Court shall review, revise, reverse, modify or affirm on appeal or certiorari, “all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation is in question.” But our senator failed to understand that reviewing, revising, reversing, modifying or affirming a treaty or international or executive agreement is different from reviewing, revising, reversing, modifying or affirming an ordinary law.
The right of the state to abrogate a treaty or executive agreement stems from its primordial duty to exercise such power as a sovereign state. That originates from its inherent right to determine what constitute its national interest. That aspect is catalyzed in the treaty or executive agreement, and cannot be made similar to any law, presidential decree, and proclamation, order, instruction, or regulations which obviously are intended for internal application.
This explains why President Trump upon learning that President Duterte scrapped the VFA merely said “fine.” He knows he cannot do anything about it. In law, the issue instantly became moot and academic.
While our senators insist we are obligated to keep our agreement, citing an old principle in international law which says “pacta sunt servanda,” that agreement is binding to the parties and must be executed by them in good faith, there are exceptions as when circumstances dictate that the continuance of the treaty could jeopardize the existence or vital development of one, that party has a valid right to be released from the obligation imposed by the treaty.
This is known as clausula rebus sic stantibus, and is provided in Article 62 of the Vienna Convention.
Our senators want the Supreme Court to decide in favor of pushing our country back to the era of imperialist hegemony serving as buffer in protecting US interest in this part of the globe. The Neanderthal stand of Senator Sotto is absolutely anachronistic because his petition takes the narrative premise that the country needs the US instead of the US having taken us for a ride. This line has been justified by continuous propaganda that China is our enemy; that it is out to occupy all the islands in the South China Sea; and China is out to economically dominate us.
Except for the rhetoric, nothing of these allegations has happened. Instead, the US has exploited our heightened Sinophobia to build up its own forces in the country with an eye of converting the archipelago as launch pad in the event an open conflict erupts between the US and China. Our political leaders were pressured to violate our Constitution, which specifically prohibits the country from hosting foreign military bases or in allowing the entry and storage of nuclear weapons.
As the war drums identifying China as our enemy intensifies, our leaders were conditioned to accepting the American proposition that they are here to stay as ally until they succeeded in restoring their bases beginning as mere VFA.
The short-sightedness in comprehending that historic decision of the President, many of our own lawmakers could not correlate that the issue about the VFA is essentially a political question, it being a sovereign right of the state on how it intends to deal with other states. It may sound parochial and maybe stereotype to students of foreign policy, but mind you the Supreme Court is likely to ask what specific instances made the petitioners to conclude that China is a threat to our security. Most damning is the question whether the Philippines is in fact assisting the US in securing a military advantage over China in the South China Sea using the archipelago as springboard to lunch a sneak attack on China.
All these may appear as ordinary, but the undeniable truth is they form part of what lawyers say political questions that could boost the position of the President to scrap the VFA and all those corollary appendages that made the country a consummate puppet of the US. Despite the presence of US forces in the country, the VFA failed to identify China as a threat to our security. Second, the proponents failed to cite the contribution of the VFA like asking, are we now stronger militarily and economically against our perceived adversary in this part of the globe?
To reiterate, the VFA is a dysfunctional agreement. The failure by the US Congress to ratify said agreement despite our full compliance to meet our constitutional requirement, the US version has reduced the VFA and EDCA to one of administration policy giving the President the ultimate decision whether or not to enforce said agreement.
Our inability to compel the US Senate to take the same process of ratifying the two agreements sine qua non gives the same legal implication that it is not obligatory to the Philippines to observe the principle of pacta sunt servanda. If the US Congress refuses to ratify the agreement, then there is no compelling reason why we should now accuse our own President of violating a dysfunctional executive agreement.
rpkapunan@gmail.com
