May 172014

The surrender of Philippine sovereignty by President Aquino: What the Filipino people should know about the Enhanced Defense Cooperation Agreement

I rise before you today to condemn in the strongest possible terms the Enhanced Defense Cooperation Agreement signed by government of the Philippines and the United States of America.

With the EDCA, President Aquino has negotiated the most one-sided, abject surrender of sovereignty over our land, sea, airspace, and airwaves to the US military and US contractors. With the stroke of a pen, President Aquino has reduced Filipinos to the status of second-class citizens in our own country.

As we know, the agreement was signed by Secretary of National Defense Voltaire Gazmin and US Ambassador to the Philippines Philip Goldberg on the morning of April 28, 2014, in time for the arrival of US President Barack Obama. However, a copy of the full text of the ten-page agreement was only released to the public by Malacanang on the afternoon of the 29th, when Obama had already left the country. Everyone wondered, why the secrecy regarding the text? Why the delay in the release to the public of the text?

Having read the text of EDCA, we can now surmise that the delay was part of a carefully planned media strategy intended (1) to shield President Obama from the embarrassment of having to defend a patently one-sided agreement before the local and international press, and (2) more importantly, the absence of the actual text will allow Malacanang to shape public perception of the EDCA by peddling partial truths and outright lies regarding its content.

To this day, Malacanang and its designated spokespersons continue to peddle lies about the contents of the EDCA. Among the most guilty here is the Department of Foreign Affairs. Allow me to enumerate only the most egregious of these lies:

The biggest lie is regarding the nature of the agreement itself. The Enhanced Defense Cooperation Agreement is nothing less than a new military bases agreement. Yet, the Department of Foreign Affairs, in its so-called Q & A on the Enhanced Defense Cooperation Agreement, insists that “EDCA does not authorize the establishment US bases,” but only “allows the US military access to Agreed Locations.”

Yet a reading of the text itself will reveal to everyone the true nature of these “agreed locations.” I have there on the projector the text itself—Article III, paragraph 1 on “Agreed Locations.” Let me read:

“With consideration of the views of the Parties, the Philippines hereby authorizes and agrees that United States forces, United States contractors, and vehicles, vessels, and aircraft operated by or for United States forces may conduct the following activities with respect to Agreed Locations: training; transit; support and related activities, refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and materiel; deploying forces and materiel; and such other activities as the Parties may agree.”

Mr. Speaker, colleagues, call it what you will. If it walks like a duck, quacks like a duck, it is a duck. And very clearly, this extensive list of activities enumerates nothing more and nothing less than the functions of a military base. And so whether or not the Philippine government—the Aquino administration—make use of the term “military base” or “agreed location,” these are military bases. Regardless of nomenclature, Mr. Speaker, these are bases.

Yet another lie perpetrated by the Department of Foreign Affairs is regarding the effectivity of the agreement. It was widely reported in the media, Mr. Speaker, that the agreement will have the effectivity of ten years. This bit of information, or rather misinformation, came from the Department of Foreign Affairs itself. Let me quote word for word from the Q & A released by the DFA to the press and to the public to explain the contents of the EDCA:

“14. How long will EDCA be in effect?
“EDCA will have an initial term of 10 years. There will be regular bilateral consultations on the implementation of the agreement.”

This is all that the primer circulated by the DFA contained. Yet, if we simply turn to the text of the agreement itself, Article XII, paragraph 4:

“This agreement shall have an initial term of ten years, and thereafter, it shall continue in force automatically unless terminated by either Party by giving one year’s written notice through diplomatic channels of its intention to terminate this Agreement.”

Very clearly, Mr. Speaker, colleagues, we see here the bad faith of the Department of Foreign Affairs in explaining to the public the effectivity of ten years—yes, that is true, initial effectivity. But clearly, the DFA failed to mention that it shall continue in force automatically. In other words, how long will this agreement last? It will last indefinitely unless terminated, after the tenth year, by either party, Mr. Speaker.

Yet another lie being peddled to the public. The agreement allegedly respects the Constitutional prohibition on nuclear weapons on Philippine territory. This is widely bandied about by all the promoters of the EDCA, again widely quoted by the media. And yet, what does the actual text of the EDCA have to say about this? Simply one line, Article IV, paragraph 6—“The prepositioned materiel shall not include nuclear weapons.” That is all the agreement has to say.

So what does it mean? It is true that in the agreement, the US government is bound not to preposition nuclear weapons. The agreement, however, is silent on the entry of nuclear weapons that are not prepositioned. We note that part of the nuclear arsenal of the United States, being the greatest military power and the greatest nuclear power in the world, are nuclear weapons that need not be prepositioned. They may be on nuclear submarines, with nuclear capability, with nuclear weapons capable of delivering intercontinental ballistic missiles—submarine-launched ballistic missiles. They have capability for tactical nuclear weapons which may be deployed by a whole array of weapons platforms of the United States, from aircraft to aircraft carriers, ships, and so on, Mr. Speaker.

So, in other words, Mr. Speaker, a partial truth has been peddled to the public that the Constitutional prohibition on nuclear weapons will be fully respected when in fact, the commitment is limited to prepositioning of nuclear materials. We’re back to the old days of the military bases in Clark and Subic, when everytime nationalists would question whether or not there are nuclear weapons on the ships and planes that arrive, the standard answer of the US government’s representative would be “We can neither confirm nor deny the presence of nuclear weapons.”

Another outright lie peddled by the DFA in trying to sell to the public this patently lopsided and unconstitutional agreement: In its primer, it says that the agreement provides “full Philippine control over facilities used.” Again, “full Philippine control over facilities used.” What does the actual text of EDCA say? Let me just quote part of Article VI, paragraph 3:

“United States forces are authorized to exercise all rights and authorities within Agreed Locations that are necessary for their operational control or defense, including taking appropriate measure to protect United States forces and United States contractors.”

So very clearly, again, an outright lie. According to the DFA in its press release, full control is with Philippine authorities. But it is clear in the agreement, full authority for operational control an defense has been granted in this agreement to the United States forces, Mr. Speaker. Again, outright lie.

I could go on enumerating the lies peddled chiefly by the Department of Foreign Affairs, and for which lies and deception this Representation, at the proper time, will hold them to account.

Let us now take this time to contemplate the breadth and extent of the surrender of Philippine sovereignty to the United States government that President Aquino has perpetrated through this Enhanced Defense Cooperation Agreement. What has he given, or more precisely, what has he given away to the Americans?

I have already pointed out that the core of this agreement is to allow the US military to establish military bases within—according to the agreement, at least initially, are on military camps of the Armed Forces of the Philippines. But is that all? Wait, there’s more.

If we look at Article III.2, we can clearly see that access that has been granted is not limited to these so-called “agreed locations”:

“When requested, the Designated Authority of the Philippines [and in this agreement, the Designated Authority is the Department of National Defense] shall assist in facilitating transit or temporary access by United States forces to public land and facilities (including roads, ports, and airfields), including those owned or controlled by local governments, and to other land and facilities (including roads, ports, and airfields).”

Mr. Speaker, colleagues, let us just reflect on what the President has given away in this particular paragraph. First of all, note the obligatory nature of the language. It says there, “when requested” by the United States. “When requested, the Designated Authority of the Philippines shall assist.” Shall. You call it a request? It is not a request when the Philippine government is obligated to comply. “Shall assist in facilitating transit or temporary access.”

And what is particularly dangerous here, is the use of the phrase “temporary access,” because, again, as Malacanang keeps repeating, this agreement is supposed to be all about temporary access. Even access to agreed locations are supposed to be merely temporary access. So in other words, the government is obligated to facilitate temporary access. To what? To all public lands, Mr. Speaker. Public lands not just owned by the national government even the local governments. So the President has committed not just the properties of the national government, even those belonging to the local governments in violation of the principle of local autonomy.

It does not end there, Mr. Speaker, it also includes access to all “other lands and facilities,” and if we say “other lands,” what do we mean here? If the earlier phrase already covered public lands, then “other lands and facilities” could only mean private lands, Mr. Speaker. So in this agreement, even privately owned lands are to be mainly accessed by US military forces upon their “request” and our government is obliged to facilitate access to such lands, Mr. Speaker.

This is a staggering surrender of sovereignty. This is unthinkable for any nation that claims to be sovereign, and to exercise full control of its territory, Mr. Speaker. This is going back to colonial times, Mr. Speaker, when the troops and forces of the US military had the run of the whole Philippines.

Let me go on, Mr. Speaker. It does not end there. To whom has such access been givern, Mr. Speaker? Let us take note of Article II, paragraph 3. Apart from US forces, meaning to say, US military forces, this agreement also gives the same access to US contractors—the same unlimited access. Kaya nga ang tawag ng Makabayan at mga aktibista dito ay “unli” ang agreement na ito, because it gives unlimited access not just to agreed locations but also all public and all other lands.

Apart from what we expect, which is “military forces,” access is also given to United States contractors. We see it in Article II, number 3, Definition of Terms:

“‘United States contractors’ means companies and firms, and their employees, under contract or subcontract to or on behalf of the United States Department of Defense. United States contractors are not included as part of the definition of United States personnel in this Agreement, including within the context of the VFA.”

In this provision, Mr. Speaker, distinction is made between United States personnel, United States forces, and United States contractors, however, in the provision itself, access is granted not only to United States military personnel but also to these contractors.

What does this mean? This is a new and troubling feature of the EDCA, that would allow the likes of Blackwater. Blackwater is the notorious private contractor for the US Department of Defense favored during the Bush administration which cornered billions of dollars of military contracts during the US occupation of Iraq. It no longer known as Blackwater but now called Academi because it is involved in numerous gross atrocities as a favored contractor for the US military in Iraq, Afghanistan, and Pakistan, including the killing of 17 civilians in Baghad in 2007. This is one reason why it changed its name from Blackwater to Academi. This will also include, among others, the contractor known as Glenn Defense Marine Asia which should be familiar to Filipinos because it was responsible for dumping thousands of liters of toxic waste in Philippine waters in 2012 and which is currently embroiled in a corruption scandal in Singapore where the US also has numerous access agreements, Mr. Speaker.

What else has this agreement given away? You probably already know that this access to agreed locations has been given by the Aquino administration rent-free. Free. Walang bayad. Not only that. The taxes for water, power, and other utilities will not be paid by the United States forces but will be paid for by Philippine government. The Aquino administration, the President agreed that they will not pay taxes.

I would just like to highlight the irony here that on April 29, a few days before May 1 when President Aquino met with a group of workers, trade unions and among their demands were tax exemptions specifically the exemption of “de minimis” or fringe benefits from tax. Yung mga manggagawa po sabi nila kung pwede ba yung mga 13th month pay namin at ibang maliliit na benepisyo, libre na po sa tax?

And what did our good president have to say to this demand of the workers? I’m quoting according to the reports of newspapers, President Aquino replied, “If we grant tax breaks in one sector, can it be done without violating the Constitution which provides uniform taxation?”

Mr. Speaker, kapag mga manggagawa po na naghihirap, humihingi ng konting kaluwagan sa pamamagitan ng tax exemptions, abay naaalala agad ng Presidente ang Konstitusyon at sabi raw baka maging unconstitutional kapag bigyan kayo ng tax break? Ngunit, kung ang gubyerno ng United States ang humingi ng tax exemption, mas mabilis pa sa alas-kwatro ay ibibigay niya ito, Mr. Speaker.

Meron pa ba? What more has the President given, or rather given away? Let me mention another thing here—free use of the radio frequency spectrum of the Philippines, Mr. Speaker. Let me quote Article VII.2:

“The Philippines recognize that it may be necessary for the United States forces to use the radio spectrum. The Philippines authorizes the United States to operate its own telecommunication systems (as telecommunication is defined in the 1992 Constitution and Convention of the International Telecommunication Union (“ITU”). This include the right to utilize such means and services as required to ensure the full ability to operate telecommunication systems, and the right to use all necessary radio spectrum allocated for this purpose. Consistent with the 1992 Constitution and Convention of the ITU, United States forces shall not interfere with frequencies in use by local operators. Use of radio spectrum shall be free of cost to the United States.”

Mr. Speaker, let me just remind everyone here of existing laws and regulations of the Philippines. We have, for instance, Republic Act 7925, the “Public Telecommunications Policy Act of the Philippines.” In its Declaration of Policy, it states that “The radio frequency spectrum is a scarce public resource that shall be administered in the public interest.” Let me remind also our colleagues of Act No 3846: “No person, firm, company, association or corporation shall construct, install, establish, or operate a radio transmitting station or a radio receiving station used for commercial purposes, or a radio broadcasting station, without having first obtained a franchise therefor from the Congress of the Philippines.” Very clearly, therefore, under Philippine laws and regulations, use of the radio spectrum is highly regulated. In fact, according to our laws, operating radio transmitters can only be done upon the grant of a congressional franchise. And yet, here we have, with a stroke of a pen, in one paragraph, existing laws and regulations are no longer effective. The numerous regulations of the National Telecommunications Commission regarding radio equipment and use of such broadcasting equipment—all of these have been rendered as mere pieces of paper by this paragraph of the Enhanced Defense Cooperation Agreement.

Mr. Speaker, colleagues, yes, we recognize the power of the Executive to negotiate and enter into treaties and international agreements but this is always with the understanding that it is limited by the Constitution, and the laws and the regulations of the Philippines. Very clearly, this is just one of the example that the President has clearly overstepped its powers, has usurped the power of Congress over this particular matter—radio frequency spectrum.

We now come to the point of extraterritoriality, Mr. Speaker. Very clearly, this agreement grants extraterritoriality to US forces and US contractors in the Philippines, and by extraterritoriality we mean that they are exempted from the jurisdiction of Philippine laws and regulations. Not only that, Mr. Speaker. If we go to Article XI, Resolution of Disputes, it’s right there:

“The Parties agree to resolve any dispute arising under this Agreement exclusively through consultation between the Parties. Disputes and other matters subject to consultation under this Agreement shall not be referred to any national or international court, tribunal, or other similar body, or to any third party for settlement, unless otherwise agreed by the Parties.”

Mr. Speaker, very clearly, the President has already surrendered the jurisdiction of Philippine courts and Philippine laws in this paragraph. Clearly, if a Filipino citizen is aggrieved in the course of implementation of this agreement, who can our kababayan turn to when the President has already has granted United forces and their contractors virtual immunity from suit? Beyond the reach of courts, and we may also ask ourselves, beyond the reach of this Congress, Mr. Speaker? Kung gusto nating maglunsad ng congressional inquiry o congressional investigation, tanungin natin an gating mga sarili, Mr. Speaker, sa kasunduan bang ito, makapapasok ba ang mga halal na opisyal, mga miyembro ng Kongresong ito o ng Senado, Mr. Speaker? Sa palagay ko, malinaw na hindi. The only persons authorized under this agreement to have access to the agreed locations will be the representatives of the Department of National Defense, or their authorized representatives. So malinaw na hindi po, Mr. Speaker.

Lastly, the matter of constitutionality, Mr. Speaker. Again, let me reiterate the relevant constitutional provision with regard to this agreement. It is among the Transitory Provisions, Article XVIII, Section 25:

“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.”

Mr. Speaker, the constitutional requirement is very clear. If this government is to allow the entry and establishment of foreign military bases and facilities on our soil, it may be allowed only if there is a treaty duly concurred in by the Senate and Congress, including this House, can even further require a plebiscite before such treaty becomes effective, Mr. Speaker.

Now, I think in my preceding arguments, I have already clearly established that this Enhanced Defense Cooperation Agreement is nothing less than a new military bases agreement, Mr. Speaker. And yet, President Aquino, the Department of Foreign Affairs, the Department of National Defense would have us believe that no, this is not a new military bases agreement. This is merely an agreement allowing access to “agreed locations,” that is their terminology. They say, Mr. Speaker, they would have us believe the legal fiction that the Mutual Defense Treaty of 1951 and the Visiting Forces Agreement of 1998 already satisfy the constitutional requirements for a treaty, Mr. Speaker, and that this Enhanced Defense Cooperation Agreement only further elaborates upon these mother treaties. That is the legal fiction that is being foisted upon us by Malacanang. And yet, on its face, we cannot accept this argument. How can the Mutual Defense Treaty allow the entry of military bases?
Anyone who knows Philippine history will know that even before the MDT of 1951, there was a separate treaty known as the US-RP Military Bases Agreement of 1947. There was a separate agreement on basing, Mr. Speaker, and it was not covered by the Mutual Defense Treaty. How can the Visiting Forces Agreement stand as the mother treaty for a basing agreement when it is obvious that if you look at the content of the Visiting Forces Agreement, it only pertains to the status of US military forces whenever they enter Philippine territory, Mr. Speaker. There is no mention of bases, there are no provisions whatsoever on basing.

Mr. Speaker and colleagues, binobola tayo ng Malacanang kapag sinasabi nilang hindi ito basing agreement, hindi na kailangan ng bagong tratado. Iniikutan ni Presidente Aquino at Malacanang ang requirement ng Konstitusyon para mapahintulutan lamang ang mga tropa at base ng Amerikano para manumbalik sa Pilipinas.

Will we allow ourselves to accept this fiction, Mr. Speaker? That is the question before each and everyone here. Will we accept this fiction being peddled and foisted upon this Congress and upon the public that this is not a basing agreement, that a treaty is not required, and we can just surrender our sovereignty with a stroke of a pen, with this agreement between the Secretary of Defense of the Philippines and the Ambassador of the United States to the Philippines, Mr. Speaker? Or, will each and every member of this Congress stand for national sovereignty, for pride of the Filipino people and reject and repudiate this new bases agreement?

We, the Filipino people can and must defend our territorial claims against China without resorting to this utter and abject surrender of our sovereignty, pride, ad dignity as a people to the United States of America. I call on you, all of you, my colleagues, I call on you to work for the revocation of this agreement and to hold accountable President Aquino for foisting upon the Filipino people this treasonous agreement.

Thank you, Mr. Speaker. #

Office of Representative Antonio L. Tinio
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