"China is pointed to as the potential enemy in the region to justify the need for an alliance."
When the President took back his decision to withdraw from the VFA, it did not earn for him the respect of our neighbors. His flip-flopping was uncharacteristic of him, not seen even at the height of the opposition attacks against his administration for alleged human rights violation. This was not even seen during the Marcos administration after he sought to redefine our foreign policy by distancing ourselves from the US.
For all President Duterte’s bravado in asserting an independent foreign policy, one could sense an inner insecurity that either he does not understand what an agreement is or what its implications are; whether from a legal standpoint, it is in accord with our constitution or politically, and can be equated to our current policy in pursuing our national interest. Even from that angle, one has to measure whether the agreement we entered into is working to our advantage.
For instance, the US has always sounded the idea that China is a threat to the region. Taking that position, the US always put its best foot forward as if to pre-empt what others have in mind. This strategy is intended to entice countries to join the alliance conditioned by the belief that China is a threat to our national security.
China is pointed to as the potential enemy in the region to justify the need for an alliance but failed to ramify whether we need the US as our ally or that the US would be depending on us to secure its interest. This is based on that Pavlovian mindset that China is a threat to our security.
The disjointed premise of who needs who for our security is the reason we signed the VFA in violation of our constitution just to accommodate the return of the US bases in our country. In the geopolitical assessment of our interest, one has to carefully balance whether our alliance with a foreign power would enhance our interest or reduce us instead to one of re-enforcing their interest. We have to take into account that all alliances are formed on the basis of national security consideration.
Perhaps, identifying our enemies in the region has become dynamic, depending on the exigencies of one’s interest. However, if our perception about our potential enemy is generated from without, then we can frankly say we have failed to identify what constitutes our national interest, or much more in delineating our interest from that of the US. This kind of misconception serves as a fulcrum to justify US hegemony in the region.
The general provision regarding treaties is provided in Section 4, Article XVIII of the Constitution, and to quote: “All existing treaties and International agreements which have not been ratified shall not be renewed or extended without the concurrence of at least two-thirds of all the Members of the Senate.” With respect to our military alliance with the US, considered by many as unconstitutional, is Section 25 of Article XVIII, to quote: “After the expiration in 1991of the Agreement between the Republic of the Philippines and the United States, foreign military basis, 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 recognize as a treaty by the other contracting party.”
One argument raised by the Senators to oppose the decision of the President to terminate the VFA was the lack of notice in informing the other party – that accordingly, notice should take effect after 180 days, otherwise it would violate the “agreement.” But the basic question, can we violate an agreement that in the first place never came into being as a treaty following the provisions of Sections 4 and 25, Article XVIII of the Constitution?
While admittedly our constitution cannot compel the other party to ratify an agreement similar to our process, nether can they compel us to faithfully comply to a treaty obligation they refused to ratify.
It would be the height of constitutional absurdity to punish our chief executive for allegedly violating the constitution which they themselves refused to recognize as a treaty. Under international law, all parties must comply with the customary rules and practices. With regard to agreements, we must abide by it pursuant to the principle of pacta sunt servanda.
Petitioner-members of the Senate should be reminded that we entered into an agreement and not an unconditional surrender where the contracting parties must comply unless there are fundamental changes of circumstance to the agreement to warrant a party to invoke the principle of rebus sic stantibus. Here, no substantial change occurred except that the other party refuses to ratify the agreement.
They should look back whether their petition for declaratory relief would suffice to give relief to the country as party to that agreement. Would the world not find the Philippines ludicrous suing our own President for scrapping an agreement which was never perfected for the fact that only the head of state of the other party signed it of which its enforceability would now revolve to his discretion of treating it as some kind of administration policy and not as a commitment?
Would it be the height of constitutional insanity to impeach our own President or even punish him while the other party getting away with it and enforcing it to our own disadvantage? We can only ask petitioners led by Senate President Vicente Sotto III, Senators Panfilo Lacson, Franklin Drilon, and Richard Gordon whether they were not insulted in having their duly ratified agreement ignored by their counterpart, or did not, at least, give them an aura of equality and courtesy?
As it is, the petition for declaratory relief is considered moot and academic: first because the subject of their petition never came into being. There was no agreement so to speak because it was never ratified by the US Senate. Second, their petition has become functus oficio, for after being abrogated, ipso facto there is nothing more for the court to decide. Third, if at all the petition has a valid ground, they should have raised the invalidity of the agreement which the US now conveniently calls an “Executive Agreement.” Fourth, the petitioners are equally at fault by acquiescence for their long inaction to question why the US senate refused to ratify the agreement.
Instead, they allowed the President as Commander-in-Chief to enforce an invalid treaty since January 17, 2000. In fact, what President Duterte did was to completely get away with it. This now brings us back to the question whether there is there a law that could compel us to enforce an invalid agreement?
The petitioners cannot now pass on to us the burden of accusing the President for violating our constitution, for that would equivocally revive an agreement which the US rejected by non-ratification.
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