POSTSCRIPT / March 18, 2014 / Tuesday

By FEDERICO D. PASCUAL JR.

Opinion Columnist

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PH-US deal does not need Senate approval

PREMATURE: It is premature for senators to demand that the agreement being negotiated for the increased “rotational presence” of American troops in the Philippines be submitted to them for concurrence.

There is as yet no officially disclosed text of the proposed agreement, and therefore no basis for assessing if the substance of the document is such that it requires Senate concurrence as required of base-related treaties under Section 25, Article XVIII, of the Constitution.

The posture of Malacañang is that the contract being negotiated will be an executive agreement. But some senators’ clamor for its submission for their concurrence gives the impression that they had prejudged it to be a treaty in the making.

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SIGHT UNSEEN: For the same reason of lack of official knowledge, it is also premature for the usual congressmen to chorus that they support the upcoming agreement even without even seeing it. (How can they see it when it is still work in progress?)

Their snappy support is reminiscent of congressmen scrambling to initial, sight unseen, the signature pages of the impeachment complaint in 2011 against then Chief Justice Renato Corona even if most of its pages were at that time still being printed.

That has been the unfortunate way we do things. As in the case of the Bangsamoro Framework Agreement, Malacañang has put the cart before the horse — going into consultations after, not before, the document had been signed already with the rebels.

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NO CONSULTATIONS: There has been no formal consultation with stakeholders, including legislative leaders, on the matter of more American military forces coming in and out in revolving door fashion.

If there were, and if there was prior advice and consent, we would not be hearing these discordant demands that the document be submitted for the concurrence of at least 2/3 of all 24 members (or 16) of the Senate.

Actually, the President being the country’s sole spokesman in foreign relations can conclude an executive agreement on rotational presence of foreign troops without submitting the contract for Senate concurrence.

But good management and sound politics say he better talk to congressional leaders, especially senators of the Miriam mold, if he does not intend to submit the agreement for formal concurrence. Better late than never.

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CONCURRENCE RISKY: Senate concurrence as proposed by Santiago is fraught with risks. The ensuing debate will open up the PH-US agreement to public scrutiny, a situation that the Left will not fail to exploit.

There is nothing wrong with open debate, but once critics succeed in convincing the public that it is a treaty requiring concurrence, there could follow a noisy demand that it be similarly treated as a treaty by the US government.

But the US Senate has not been that eager to ratify treaties submitted to it by the White House. This can lead to complications since Section 25 requires that any basing agreement must be similarly recognized as a treaty by the foreign party:

“… foreign military bases, 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 recognized as a treaty by the other contracting State.”

The President’s gofers must scurry to the lady senator and talk her out of her treaty mindset before the neighborhood fire spreads.

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TREATY OR AGREEMENT?: The question can be reduced to splitting hair over whether the upcoming contract is a treaty or an executive agreement.

Conventional wisdom places a treaty a notch “higher” than an executive agreement, therefore requiring congressional or Senate concurrence while a “mere” agreement does not.

Both lawmakers and the general public are unable to classify the deal on rotational presence on the basis of its substance – whether it breaks new ground or adopts a major policy shift – because its contents have not been fully disclosed.

Are we then left with simply accepting what the negotiating parties say it is?

They say it needs no congressional approval, because it stems from the 1951 PH-US Mutual Defense Treaty and the 1998 Visiting Forces Agreement, both of which have been concurred in already by the Senate.

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HOUSE SUPPPORT: Congressional leaders, among them Deputy Speaker Giorgidi Aggabao and Deputy Majority Leader Sherwin Tugna, voiced support for the new security arrangement with the US, saying it could deter China’s increasing aggressiveness in the West Philippine Sea.

Aggabao cited the parallel presence of US troops in South Korea as “a strong counterfoil to North Korean aggression” and of marines in Japan preventing China from taking the disputed Senkaku Islands.

While true, this security angle takes a narrow view of the larger geopolitical picture that should be dominated by trade and amity of neighbors.

China’s aggressiveness is seen in Manila as responsible for security concerns dominating the PH-US talks on the increased rotational presence of GIs. China may want to reassess its public use of superior force vis-à-vis the Philippines.

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LAST CALL: All is set for the First Clark Golf Cup blasting off on Friday at the Mimosa Golf & Country Club at the Clark Freeport, Pampanga. The ceremonial tee-off will be at 7:30 a.m., followed at 8 a.m.by the game proper. Awarding program and the raffle follow immediately at the nearby Pagcor Casino in Mimosa.

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(First published in the Philippine STAR of March 18, 2014)

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