POSTSCRIPT / August 3, 2021 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Must foreign policy be a Du30 solo job?

WITH the coterie of President Duterte calling him the architect of Philippine foreign policy and the nation’s sole spokesman in foreign relations, he seems to have started to believe it!

But some elders have come around to warn that it would be a mistake to leave foreign policy entirely to President Duterte, that it may be best for the country for him to seek the advice and consent of the legislature through the Senate.

Foreign Secretary Teddy Locsin Jr. can’t always be beside Duterte to fall back on when diplomacy gets a bit complicated.

“Foreign policy is not exclusive to the President,” Senate Minority Leader Franklin Drilon reminded us Sunday. “It is a shared power with the Senate. It cannot be left to the President alone since it involves policy issues, and Congress is the policy-making body in the government.”

He noted Duterte’s withdrawal the other day of his notice of termination of the PH-US Visiting Forces Agreement (VFA) “after much hemming and hawing”. This proves, he said, that foreign policy cannot be left alone to the President.

Duterte’s 180-day notice was served on the US on Feb. 11, 2020, after the cancellation of the US visa of Duterte’s protégé Sen. Bato dela Rosa. Like the changing weather, he kept extending the deadline until he withdrew the termination notice altogether on Friday.

Such petty stuff as working out a temporary visitor’s visa should be left to travel agents, not to the President of the Republic.

If anything, the waffling on such a major bilateral agreement impacting on national security could have been avoided had there been wider prior consultation, including with the Senate.

After all, the Constitution says in Art. VII, Sec. 21: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” This implies seeking advice and a sharing of responsibility.

The concurrence of the Senate on the matter of foreign troops using facilities in the country is also provided under Art. XVIII, Sec. 25, which mandates:

“After the expiration in 1991 of (the PH-US military bases agreement), 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.”

To fill the vacuum left by the closing of the bases in 1992, the two countries entered into the VFA which provided for expedited procedures for the entry and stay of US military personnel and for regulating their conduct in the country.

The agreement allowed the visa-free entry and movement of US personnel. This made possible the continuation of the yearly “Balikatan” (Shoulder to shoulder) joint exercises that improved the interoperability of the armed forces of the two nations.

But there remained the felt need for facilities similar to the pre-1991 arrangements. In 2014, the Enhanced Defense Cooperation Agreement (EDCA) was signed to open to US forces “agreed locations” for their rotational temporary activities.

In April 2015, the US was given space on eight bases, including the former Subic naval base and Clark airbase. In March 2016, more locations were opened to the US on Antonio Bautista air base (Palawan), Basa air base (Pampanga), Fort Magsaysay (Nueva Ecija), Lumbia airport (Cagayan de Oro), and Benito Ebuen air base (Mactan, Cebu).

Duterte said he had been informed that the US has depots in the country where it keeps weapons that “might include nuclear arms”, making them targets of Chinese missiles if war breaks out.

The Philippine government has been aware of the depots, in fact, it helped pick their locations. The presence of nuclear arms in them is speculation.

Keeping nuclear weapons is a violation of the Constitution which says in Art. II, Sec. 8: “The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.”

 SC: Duterte must honor ICC processes

THE NEED for Senate concurrence in the President’s approval of international agreements was also raised in the case questioning his unilateral action of pulling out of the Rome Statute in a bid to escape being hauled to the International Criminal Court in The Hague.

It turned out, however, that under the Rome Statute, the ICC retains jurisdiction over actionable acts committed before a state-party pulled out of the treaty as the Philippines did on March 17, 2019.

In a recent unanimous decision, the Supreme Court said this was spelled out in Article 127(2) of the Rome Statute, which the Philippines joined in November 2011.

The tribunal also held that the President may not arbitrarily terminate international agreements without Senate concurrence. The ruling written by Associate Justice Marvic Leonen was handed down on March 16 and released to the media on July 21.

In 2020, Senate President Vicente Sotto along with senators Drilon, Richard Gordon, Panfilo Lacson, Ralph Recto and Miguel Zubiri asked the SC to declare that withdrawal from a treaty or international agreement requires the concurrence of the Senate.

They argued that since Senate concurrence was needed to validate the Statute and pave the way for Philippine membership, the same must be required to pull out.

The SC ruling meant that Duterte may not invoke the Philippines’ withdrawal from the Statute to escape investigation by the ICC prosecutor of the charges that crimes against humanity were committed in the war on drugs under his watch.

The SC said in effect that as a state-party, the Philippines must recognize the jurisdiction of the ICC and cooperate with its processes even after its withdrawal from the treaty.

“Withdrawing from the Rome Statute does not discharge a state-party from the obligations it has incurred as a member,” the SC said.

Duterte has stuck to his argument that the treaty had no legal effect because it was not published in the Official Gazette.

(First published in the Philippine STAR of August 3, 2021)

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