EDCA stands for Enhanced Defense Cooperation Agreement which allows the U.S. to set up camps within Philippine military camps despite the Constitutional prohibition that “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. “
To sell EDCA to the Filipino public, the Aquino government led by Foreign Secretary Albert del Rosario and Gazmin demonized China and said with the agreement, the U.S. will come to the aid of the Philippines in case there will be an armed conflict with China in the Spratlys, where both the Philippines and China have conflicting territorial claims.
Last Monday, Gazmin admitted that there is no such guarantee.
Gazmin’s answer follows the same line that the new Solicitor General, Florin Hilbay, told the Supreme Court last week when Senior Associate Justice Antonio Carpio told him, “I don’t want you to tell the world that we can rely on EDCA for our defense.”
At the Senate hearing, Santiago asked Gazmin: “What will the US do if a Chinese ship fires at a Philippine ship in the West Philippine Sea?”
Gazmin answered, “It’s part of the agreement that we can pull the US to join us in the fight.”
If he thought he can get away with that answer which was not exactly truthful, Santiago asked if the U.S. would immediately deploy planes and ships to fire at the Chinese, Gazmin had to admit that the deployment would go “through a process.”
Pressed further how long would the process take, Gazmin had to admit again that “The process takes long.”
Santiago knew it: “By that time, the [Philippine] ship has already sunk.”
The process Gazmin was compelled to mention this time, which he conveniently skipped before when he was deluding the Filipino public about EDCA, is the provision in the 1951 Mutual Defense Treaty that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.”
In the U.S. “Constitutional processes” means the President would have to ask approval from the Congress which could take a lot of debate and time.
Santiago is right. By the time the American legislatures would be through debating, the Philippine ship in Spratlys would have already been sunk. And the U.S. Congress may not even approve of risking the lives of their men in defense of rocks and islands the Philippines is disputing with China.
The U.S., in the first place, has not taken a position on the conflicting claims in the South China Sea.
But Gazmin, who has taken the pathetic position that the Philippines is so helpless without America, tried still to push EDCA as vital to the territorial defense of the country by saying that it serves as a deterrent.
He claimed that due to EDCA the Chinese didn’t block the sending of supplies to the troops in Ayungin Shoal which they did in May.
By crediting it all to EDCA, Gazmin is not being honest about the reason why China didn’t block the resupply of the troops provision in Ayungin.
The past months, both Malacañang and Beijing have been feeling each other out about re-activating bilaterial relations strained by the filing by the Philippines of a suit against China in the United Nations Arbitral Court. This culminated in the 10-minute pull aside talk of President Aquino and President Xi Jinping at the sidelines of the Asia Pacific Economic Cooperation summit in Beijing last month.
Unlike the high-profile trip last May to Ayungin which was covered by media with two U.S. planes hovering, the recent trip was done without much fanfare which China took positively.
Hilbay was more honest when he told the High Court that the best that the Philippines can do is to “hope” for the US to “change its mind” and come to the defense of the Philippines in the dreaded scenario of an armed conflict with China.
Hilbay said:“Hope is free, your honor, so might as well have it. We do what we do. We do what we can. That is the EDCA.”
EDCA is like more of an
“Enhanced Diversionary by China and America”
aimed at the Filipino masa.
The defense of the nation properly rests with its Commander in Chief, not the Congress. The day we have Congress deciding our security is the day we get less of it, for the politicization of defense. Which Santiago is doing, I would add. She proposes no alternative to EDCA other than leaving China in Philippine territory, stealing Philippine resources. I find it interesting that she is more upset about America than about China. That’s like leftists who criticize Aquino but not Binay.
Political. Not interested in the nation’s well-being.
Could a New Constitutional Convention Be on The Horizon?
It’s been 227 years since the United States Constitution was ratified in Philadelphia. Since then, Congress has approved 27 amendments to the reverent document, including the Bill of Rights. In recent years however, many have wondered if it’s high time to go back to the drawing board.
One little known way to change the Constitution, is for the states come together to call for a new constitutional convention. In a way, this right exists as another series of checks and balances; except in this case, it’s not between the executive, judicial, and legislative branches.
This check on power stands between the states the Federal Government.
So far, 29 state bodies have called for a new convention, with the majority of these decisions coming from conservative states. With the slew of Republican victories last month, we may soon see that number increase to 34 states, which is the bare minimum required to call for a new convention.
Two states, California and Vermont, have called for a convention to overturn the Supreme Court’s Citizens United decision that permits huge amounts of unregulated money into federal campaigns. Larry Sabato, a University of Virginia political scientist, wants a convention to adopt sweeping changes, including a single six-year presidential term and concomitant House and Senate terms, to create more of a parliamentary system.
Petitions to adopt term limits for members of Congress have circulated for years.
But much of the current impetus comes from fervent fiscal conservatives. This includes calls for an amendment requiring a balanced budget and other restraints on the federal government’s spending and taxation powers.
A constitutional convention is a rallying cry for right- wing talk-radio hosts such as Rush Limbaugh and Mark Levin; the idea has been endorsed by Senators Ron Johnson of Wisconsin and Oklahoma’s Tom Coburn, both conservative Republicans. An influential backer is the American Legislative Exchange Council, known as ALEC, an organization of conservative state legislators and private sector lobbyists that advocates for corporate interests.
However, many constitutional scholars believe that limits cannot be placed on a convention; if one were convened,
anything could be up for consideration. A convention “can propose what they think is appropriate,”
says Michael Paulsen, a professor at the University of St. Thomas law school in Minneapolis who is an expert on the issue. “There is no good theory under which the convention can be ‘limited’ to specific topics — far less to a specific proposed `text.’”
And therein lies the problem. If a convention were called, anything could happen. Even though the movement would be lead by conservatives, there’s no stopping liberals from adding their input. Even if they got what they wanted, would liberal states stand idly by and let their government be changed to suit the needs of conservatives?
Remember, the American public tends shift back and forth between Republicans and Democrats every decade or so. Who’s to say that the country wouldn’t lean back to the left a few years down the road? We could find ourselves facing another convention lead by liberal states.
I’m not saying that either one of these parties could build a better government. No matter what your political persuasion is, our dysfunctional government has been built by generations of corrupt Republicans and Democrats, and they’ll be the ones who get to “correct” the law of the land.
And for those of you who are staunch conservatives, keep in mind what would happen if you had your way with the Constitution. If the past 8 years under Obama has seemed like hell to you, how do you think the liberals will feel about living under a more conservative constitution? Like I said, political opinion tends to swing back and forth in this country. If anything, calling for a convention could be the start of a tug of war between the states. There’s no telling what we’ll be left with when the dust settles.
Another factor we have to consider is, who’s to say that the convention would be led by liberals or conservatives? As it stand now, both political parties take their marching orders from the banks and corporations. Behind the scenes, our government is run by a handful of influential people.
If they can hijack our political process, there’s no stopping them from getting their grubby hands all over the state’s convention.
These people know no political ideology, no national boundaries, and no scruples. They view us with contempt, and consider us as nothing more than cash cows. I shudder to think of what the Constitution will look like after that.
At the end of the day, America is faced with irreconcilable differences. There are those who want to expand government in certain ways, and those who want to curtail it.
Those who want to project our military power across the globe, and those who our troops to come home. Some want to expand the welfare state, and some think government has no business in charity. Then there’s abortion, religion, guns, drugs, and immigration, and on and on.
This country is filled with millions of people, who all have very different ideas on how society should be structured. If the United States is going to survive the 21st century, then there is only one way it can be done.
The Federal Government must be curtailed at every level, and the states must be free to pursue whatever kind ideology their citizens see fit to live under. Let there be socialist welfare states, conservative republics, and minimalist libertarian enclaves. Let the people vote with their feet, and move to states that fit their beliefs, and let these states rise and fall on their own merit.
As it stands now, our nation is tearing at the seams, and we haven’t been so divided since the Civil War. Likewise, if the United States isn’t decentralized soon, and if large swaths of the country are forced to live under a majority they despise, this nation is going to burn.
And no Constitutional convention led by either Democrats or Republicans is going to save us.
SEE?…….. FINALLY THEY REDUCED US AMERICANS TO YOUR LEVEL! HAHAHAHA!
Why does the argument for or against EDCA have to turn on simplistic questions like Miriam’s “What will the US do if a Chinese ship fires at a Philippine ship in the West Philippine Sea?”
First we don’t know what the US will do. If one looks at how the US has acted when Isreal, its closest ally was under serious attack from Egypt and Syria, one will see that the US never sent troops. It went all out to support Israel with arms not with troops.
In short, we are expected to shed our own blood fighting for what is ours. Self-defense ika nga. It would be ridiculous for anybody to expect others to shed their blood to defend our territory. All we can and should expect from our allies is that they help prepare us for self-defense with training, weapons, etc.
And that’s why an intelligent debate on EDCA and similar military alliances should focus on whether or not such alliances help us with our self-defense capabilities.
The government website states clearly what EDCA is designed to promote:
• Interoperability
• Capacity building towards AFP modernization
• Strengthening AFP for external defense
• Maritime security
• Maritime domain awareness
• Humanitarian assistance and disaster response (HADR)
That is what sensible people should discuss and not if the US will shed its blood to defend our territory.
When PM was asked if the agreement he signed with China is not to the Disadvantaged of Canada his very direct reply was.. When we signed an agreement or treaty with any Country be it a Defense or Trade we do it with one thing in Mind, For the INTEREST OF OUR Country and it is the same as the other PARTY. make no Mistake about it.
@manuelbuencamino #4, I would imagine that my fellow Americans would appreciate your thinking.
I would also say, from our current position in the Visayas awaiting another super-typhoon, it is rather unkind of Senator Santiago to want to chase off the American troops who are standing by to rush to the greatest need as soon as the storm passes. She is painting herself into a very small rabbit hole, only occupied by extremists and malcontents. Harry Roque comes to mind . . .
The Philippines relies on the Mutual Defense Treaty. Article IV of that treaty says:
chanrobles.com/mutualdefensetreaty.htm#.VH7vV8klmxA
Three w’s in front.
The response of the United States will be governed by its constitutional processes. The powers of the President as Commander-in-Chief are governed by the War Powers Resolution of the US Congress.
Section 2 C says:
So the US President can only introduce troops when the US territories or forces are attacked, or upon authorization from Congress. That is why Dubya had to ask for authority to wage ware on a noun (War on Terror).
There is no power to introduce troops when allies are attacked.
But what about the treaty )MDT) that says that the US will treat an attack on the Philippines as an attack on itself?
That has been abrogated by the War Powers Resolution, which is an Act of Congress later in time.
Reid v. Covert
law.cornell.edu/supremecourt/text/354/1#writing-USSC_CR_0354_0001_ZO
Three w’s in front.
The government states that the EDCA is a mere implementation of the MDT, and/or the VFA, and therefore does not need Senate concurrence. That is to say that the MDT is a self-executing treaty, and may be implemented without Senate concurrence.
That thrust is parried with quotes from Medellin v. Texas.
Read the superb writing of Chief Justice Roberts here:
law.cornell.edu/supct/html/06-984.ZO.html
Now how do we determine whether a treaty is self-executing or not. Chief Justice Roberts says read the treaty.
So what does the MDT say?
Each party would act in accordance with its constitutional processes. Clearly, the MDT is not self-executing, because it is subject to the constitutional processes of each state.
In the case of the United States, the President needs to ask Congress for authorization to commit troops. What about the Philippines? The Constitution says:
The text is prosepective, and clearly calls for a new treaty to host troops or facilities. It does not allow hosting of troops in implementation of an existing treaty (MDT). The MDT is not self-executing, or self-implementing. It calls for constitutional processes – legislation in the US, Senate concurrence in the Philippines.
Oops. The War Powers Resolution are found below:
avalon.law.yale.edu/20th_century/warpower.asp
A few justices asked, why not pray that we order the Executive to refer the EDCA to the Senate?
That is dangerous. It will water down the authority of the Supreme Court in issuing that advisory opinion. Why advisory opinion?
It is the absolute prerogative of the Executive to determine whether or not to forge a treaty or a mere executive agreement. So if the Penoy insists that the EDCA is an executive agreement, he may refuse to refer the EDCA to the Senate. That allows him to defy the Supreme Court, without being in contempt, because he is asserting his prerogative. The only recourse, is to declare that document (edca), whether the President considers it an executive agreement or not, unconstitutional.
This is the same dilemma faced by Chief Justice Marshall. If he ordered the commission (appointment papers) of newly appointed judges (Marbury) delivered, James Madison could ignore it, watering down the authority of the Supreme Court.
A justice also asked, why is no Senator appearing as a petitioner. It is their power, so they have standing, not the petitioners. Diyos ko po. Saan galing yan?
Begging to differ Your Honor. The powers reposed in the Senate, or any branch, are delegated by the people. The powers ultimately belong to the people.
The powers are to be exercised for the people, not personal rights of the Senators. Whenever power is not exercised properly, affecting the public coffers, then any taxpayer would have standing to sue.
@ Joe America #6. Yes I suppose they would. But just to be clear, I am not out to excuse America or any other mutual defense ally should it fail to live up to its commitment.
The point of my comment was to show that relying on others for one’s self-defense is not sound policy. Putting it in another way, assistance is always welcome but it should not be the basis of defense strategy.
Self-reliance is the goal and we must do everything that will help us achieve it. And so my starting point on EDCA is to ask whether or not it will fulfill what it was designed to do.
@saxnviolins, I very much appreciate the legal dissection. On one hand we have all the legalities, on the other China is sitting on Philippine rocks. If we adhere to the legalities but weaken defense in the doing of it, what is the purpose of laws in the first place? Best throw them out, for while the law caretakers are bickering and dithering, the Chinese will be moving in.
@MB, got it, thanks.
Thanks, SnV. Very educational.
Saguisag says memoranda are due next week. I hope somebody will post the memoranda.