POSTSCRIPT / March 25, 2014 / Tuesday

By FEDERICO D. PASCUAL JR.

Opinion Columnist

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How to hurdle ban on US military bases

TREATY OR NOT: It is correct, but it might be impractical, to require that the upcoming PH-US Enhanced Defense Cooperation agreement be recognized as a treaty needing review and concurrence by the Senate.

Based on information published, the agreement does not break new ground. Reportedly, it just expands the rotational presence of American military personnel as already contracted under the PH-US Visiting Forces Agreement.

Focused on defense cooperation, it can be packaged as merely a stem off the main stock that is the PH-US Mutual Defense Treaty of 1951.

Besides, it is highly improbable that the US Senate will regard the new contract as a treaty and ratify it mutually as required by the Philippine Constitution of any pact allowing the basing of foreign troops in the country.

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NOT JUST BASES: Sen. Miriam Defensor Santiago is right about the new defense cooperation agreement having to be a treaty that must pass Senate concurrence.

Section 25 of Article XVIII (Transitory Provisions) provides: “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 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 expanded rotational presence, or whatever they call the basing-type presence of American troops under a contract that is likely to run for at most 20 years, is covered by Section 25 that speaks of “foreign military bases, troops or facilities.” It is not just bases.

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CONDITIONS: The constitutional ban does not distinguish between permanent and rotational presence, nor does it qualify as to the size or duration of the presence. It imposes a total ban — unless certain conditions are met.

The conditions are: “…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 Executive cannot quibble and adopt the Marcos expedience of labelling the military installations as “facilities” squatting on Philippine (not US) bases. Applied now, that formula will be an attempt to hide the reality of foreign military presence.

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REACTIONARY: In many parts, the 1987 Constitution is in reaction to the nightmare under Marcos. That must be one reason why the term “facilities” was inserted in Section 25 when it could have simply banned foreign military bases.

Dashing glib rationalization, Section 25 makes a sweeping ban on “foreign military bases, troops or facilities.” That includes similar installations in whatever guise or manner the bases are concealed with the connivance of the host government.

The Filipino and American panels writing the contract will have to come up with another clever term or engage in circumlocution to go around the spirit of the prohibition against the assignment here of foreign troops, be they American or of some other extraction.

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TALL ORDER: Then there is the other cumbersome requirement of the Constitution that the other party, the US in this case, must also recognize the basing agreement as a treaty.

Good luck! Based on the treaty scorecard of the US Senate, that is a tall order.

It would be embarrassing to see Miriam and a few like-minded senators going through the motions of reviewing and concurring with what the Executive has signed, sealed and delivered — while the US Senate simply sniffs and tosses its copy to the archives.

A summary of bilateral agreements submitted to the US Senate shows that that chamber has not been eager to concur with the contracts concluded by the White House, forcing the latter to go lower by signing mostly executive agreements not requiring ratification.

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REFERENDUM?: Only Miriam appears to be an obstruction in the captive Senate. It is safe to assume, however, that she can be talked out of her demand for Senate concurrence when the, huh, security and other interests of the nation are whispered to her.

But if she or other opponents of the upcoming agreement are adamant, Malacañang could fall back on the other constitutional condition (if the Congress so requires) that the pact be “ratified by a majority of the votes cast by the people in a national referendum held for that purpose.”

Many Filipinos still believe in the myth that the US is ready and willing to go to war for them. That hope springing eternal will be crucial in having the upcoming defense cooperation agreement approved.

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N0Y MUST DELIVER: The fate of the new PH-US agreement rests largely on how President Noynoy Aquino steers it through the diplomatic and political maze.

If Mr. Aquino is in bad need of continued American support, he has no choice but to ensure its speedy conclusion – in time for the Manila visit of President Barack Obama this summer. If he cannot deliver it, he is a goner.

Many Filipinos fail to see that the Americans need this basing arrangement as much as we do. With Japanese growing more strident in their demand for the ouster of Marines in Okinawa, the US is hard pressed to locate an alternative forward base under the belly of China.

The security need is mutual. China has been grabbing Philippine shoals and islets with Manila unable to respond to the military might being used to enforce Chinese occupation. It is looking up to Washington for help.

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(First published in the Philippine STAR of March 25, 2014)

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