POSTSCRIPT / June 29, 2014 / Sunday

By FEDERICO D. PASCUAL JR.

Opinion Columnist

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A political balancing act on DAP and EDCA

CONSTITUTIONAL ISSUES: With its already exhaustive studies on similar issues previously raised before it, the Supreme Court does not really require further legal research for it to determine if the these two controversial items do not violate the Constitution:

• The Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States for the assignment for longer periods of a greater number of US military personnel and materiel on bases in the country.

•The Disbursement Acceleration Program (DAP) created outside the budget by the Office of the President to which were diverted billions of pesos from various agencies and disbursed for activities and projects outside the Executive branch.

The legal issues raised in these two cases are cut and dried, but the SC decisions are reportedly being delayed by political considerations that have crept into the debate.

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DECISIONS DELAYED: The High Court has had previous studies on EDCA-like constitutional issues similar to those raised over the 1991 Visiting Forces Agreement that leans on the 1951 Mutual Defense Treaty.

And on the DAP, the court has ample legal research into a similar item, the Priority Development Assistance Fund (PDAF) , popularly known as pork barrel whose disposition, which is an executive function, is often illegally delegated to senators and congressman and sometimes hijacked.

Many observers think that the Supreme Court merely needs to validate its previous researches and maybe expand its references, and that decisions are being delayed not by unresolved legal issues but by politics (on DAP) and national security considerations (on EDCA).

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LEGAL CONTORTION: On the DAP, some SC justices are reportedly weighing the repercussions of their following the legal and moral direction of the law pointing to DAP’s being more unconstitutional than PDAF, the congressional pork thrashed before it.

With some SC justices more concerned with their and the President’s political fate than the higher national interest, the entire tribunal is put to an acid test as an independent institution.

What our elders have told us is not true — that once installed in the Supreme Court, a justice cuts his umbilical cord to the President who had appointed him and never looks back?

It is appalling that a few justices – in an incredible legal contortion — are willing to concede the obvious, that the President’s DAP pork is illegal, but argues that he should not be held liable for this violation of the Constitution!

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LAW VS SECURITY: In the case of the EDCA, the legal balance has been disturbed by the aggressive antics of China, the neighborhood bully grabbing with impunity areas in the Philippines’ exclusive economic zone.

Having neglected the upgrading of its defense capabilities, the Philippines is now forced to seek American protection – even if this means playing blind to the constitutional restrictions on the presence of foreign troops, bases and facilities.

President Noynoy Aquino, the Commander-in-Chief and sole spokesman of the country in foreign relations, has been pushed to a corner where he has to do something to defend national honor and territory — possibly with the Supreme Court winking and then looking the other way.

Whatever it is, the High Court better move fast on the petition for the issuance of a Temporary Restraining Order or its ruling directly on the main question of EDCA’s constitutionality.

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U.S. IMPATIENT?: Are Americans growing impatient in pursuing their own security agenda in this former US colony?

Military sources said that DynCorp International, L.L.C., of Falls Church, Virginia, has been awarded a $29,510,357 cost-plus-incentive fee ($26,827,597 target cost; $2,682,760 maximum target fee) contract for operations support services for Joint Special Operations Task Force in the Philippines.

The work covers management and administration; command and staff; public safety; air operations; port operations; supply; morale, welfare and recreation support; galley; facility support; utilities; base support vehicles and equipment; and environmental services.

DynCorp apparently already has a schedule. Sources said its work must be completed by September 2017.

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SOLON’S QUERY: This report on DynCorp, a US military contractor, jibes with information from Bayan Muna Rep. Neri Colmenares, who asks: “How can a private, foreign corporation control a portion of a Philippine military camp?”

An item by Bulatlat writer Alexander Martin Remollino has it that DynCorp is already fencing off a facility of the Joint Special Operations Task Force-Philippines (JSOTF-P) on Edwin Andrews air base in Zamboanga City.

Remollino quotes former Navy Lt. Senior Grade Mary Nancy Gadian reporting alleged offenses of US troops in the Philippines, including the denial of access by Philippine military officers to portions of Erwin Andrews air base fenced off by DynCorp.

Gadian was described as a bemedalled former Navy officer who had been assigned in Mindanao for many years and dealt directly with US troops in the area.

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ILLEGAL ACTS: Colmenares said that aside from the JSOTF-P office and warehouse on Edwin Andrews air base, DynCorp guards are also fencing off another facility at Camp Bautista on Jolo Island, Sulu.

Even Philippine camp commanders, he added, have to ask permission from DynCorp personnel before they can enter these facilities. He said:

“Once it’s fenced off, entry to such restricted area is regulated by DynCorp personnel. It’s illegal. It’s a Philippine military camp. DynCorp is not a Filipino corporation – it’s transnational. It’s private. How can a private, foreign corporation control a specific portion of a Philippine military camp?”

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(First published in the Philippine STAR of June 29, 2014)

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