Was the Senate sidelined in PH-US military deal?

MANILA, Philippines (UPDATED) – Did the executive branch bypass the Senate in signing a military agreement with the United States?

Senate defense committee chairman Antonio Trillanes IV rejected the criticism from former senators, lawyers, and concerned individuals that the deal lacked transparency, with the Senate in particular kept in the dark.

Yet Senate foreign relations committee chairperson Miriam Defensor Santiago said she did not get a copy of the agreement before its signing, calling it "an unfair surprise on the Senate." 

Trillanes told Rappler that the Philippine panel that negotiated the deal briefed his committee about the Enhanced Defense Cooperation Agreement (EDCA) signed on Monday, April 28. He admitted though that not all senators were part of the briefing.

“The Senate committee on national defense and security has been thoroughly briefed at every step of the negotiations for the EDCA. We have to understand that while the agreement per se would be made public, the negotiations cannot be discussed publicly since we are dealing with security matters,” said Trillanes, a former navy officer.

The deal was signed Monday morning ahead of the state visit of US President Barack Obama. The agreement gives US troops increased access to Philippine military bases, and allows them to construct facilities and store equipment in these bases, with consent of Philippine officials.

Trillanes said the panel briefed the Senate committee regularly at the Armed Forces headquarters but in executive session. “Once you discuss specifics, you can’t do it publicly so it was all executive session.”

He said all committee members were invited but not all attended.

“The same panel briefed us on what is happening, the status of the negotiations, what are the contentious issues. As the chairman, I can say there was briefing. But you observe in the Senate that, when you issue an invitation, senators are involved in other committees, so sometimes you only get the quorum or people really interested,” Trillanes said in a phone interview.

Senator Paolo Benigno "Bam" Aquino IV said he asked for a briefing on the deal last year. “In that meeting, I made our position clear that any implementing agreements between our countries should be in line with the Constitution; that we have full control and authority on military activities and of any military facilities in the country and; of course, that the agreement is mutually beneficial for both nations."

Senate President Franklin Drilon though clarified that the Senate did not participate in the decision-making of the Department of National Defense (DND) and the Department of Foreign Affairs (DFA).

“No, the Senate was not consulted on the positions taken by the DND/DFA panel, although written general reports were submitted to the Senate on the status of the negotiation,” Drilon told Rappler.

Senate President Pro-Tempore Ralph Recto, an ex-officio member of the defense committee, also said he was not part of the briefings.

“It is only now I get to read a primer coming from the media,” Recto said.

In the primer the DFA released after the deal was signed, the department said: “During the course of the negotiations, the leadership of both Houses of Congress was informed of the progress of the negotiations. We will be scheduling a full briefing for interested members of Congress.”

The issue of consultation and transparency arose after former senators who voted to close down US bases in the Philippines in 1991 decried the lack of transparency in crafting the deal. They pointed out that no copy of the agreement was released to the public before it was signed.

“Even Congress, particularly the Senate, has been kept in the dark. Only general statements and blanket assurances from Philippine and US officials that the [agreement] will adhere to the Philippine Constitution have been issued. There is no official venue for public discussion and debate,” said former senators Teofisto Guingona Jr, Rene Saguisag, and Wigberto Tañada, 3 out of the so-called 12 “Magnificent Senators.” 

Under the 1987 Constitution, the Senate must concur with treaties that the President ratifies. The charter states that foreign military bases shall not be allowed except under a treaty duly concurred in by the Senate.

Section 25, Article XVIII of the Constitution reads as:

“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.” 

‘Deal must pass through Senate’

Recto joined his colleagues Senator Miriam Defensor-Santiago and Senate Majority Leader Alan Peter Cayetano in saying that the deal requires Senate approval.

“It would appear that the agreement to a certain extent amends the Mutual Defense Treaty and therefore must pass through the Senate,” he said.

Asked what aspect of the deal amends the treaty, Recto said, “The title itself. The whole framework: Enhanced Defense Cooperation Agreement. More troops, more equipment, supplies, materials and building of facilities, etc.”

Recto said, “Question: Will the US help our fishermen in the West Philippine Sea if and when the Chinese push them out of our fishing grounds?”

Drilon said he still cannot say whether or not the deal should pass through the Senate. “I have not read the agreement, and therefore cannot express an opinion.”

The office of Senate Minority Leader Juan Ponce Enrile, who was part of the Magnificent 12, said he too has not read the agreement and cannot comment.

Senator Loren Legarda said the agreement provides a "comprehensive legal framework" for defense cooperation with the US, and boosts the Philippines' military capabilities. 

"Our two nations are at work to strengthen bilateral relations and cooperation or humanitarian and disaster relief, at the same time envision greater maritime security and political stability in the region," Legarda said. 

Trillanes though was firm in his stand that the deal does not need Senate ratification. “It is but an implementing guideline of the Mutual Defense Treaty and the Visiting Forces Agreement and there are no new concepts introduced to make it an entirely different treaty. Having said this, anybody can raise the issue to the Supreme Court for their disposition.”

Malacañang takes the same position as Trillanes, that the deal merely implements past treaties and does not need Senate approval.

‘Best national interests’

A former backdoor negotiator to China, Trillanes said the deal must be “looked at independently” of Manila’s territorial row with Beijing despite analysts’ view that the deal is aimed at countering China’s increasing assertiveness in the South China Sea.

Former Senator Aquilino “Nene” Pimentel Jr, another member of the “Magnificent 12,” believes the deal cannot be viewed separately from the dispute.

“I have not read the agreement, but what I can say is that we need the assistance of powerful friends like the US to keep our national territory secure from China’s attempts to take away some islands that belong to us, and to make free passage of friendly vessels through our seas,” said the former senator.  

“Plus the need to secure the fishing rights of our fisherfolk over our exclusive economic zone and protect our undersea oil resources there,” Pimentel said.

A legal luminary, Saguisag said that the executive branch must include the Senate in the process, like what former DFA secretary Raul Manglapus did in 1991. 

“The deal continues to be secret. For shame. We will support any agreement in light of our own best national interests [but] the people and the process should matter,” Saguisag said. – Rappler.com