Edited Oreign 01dec14

Republic of the Philippines
CONGRESS OF THE PHILIPPINES

SENATE
Pasay City
COMMITTEE ON FOREIGN RELATIONS
DATE
Monday, December 1, 2014
TIME
11:30 a.m.
VENUE
Committee Room Nos. 2 and 3

2nd Floor, Senate
Financial Center, Roxas Boulevard
Pasay City
AGENDA
Inquiry, in Aid of Legislation, on the

Enhanced Defense Cooperation Agreement
(EDCA)
_______________________________________________________
ATTENDANCE
SENATORS PRESENT:
HON.
HON.
HON.
HON.
MIRIAM DEFENSOR SANTIAGO

SONNY ANGARA
FERDINAND R. MARCOS JR.
PIA S. CAYETANO
Chairperson
Member
Member
Member
GUESTS/RESOURCE PERSONS:
Hon. Albert del Rosario
Hon. Voltaire Gazmin
Hon. Pio Lorenzo Batino
Hon. Francisco Baraan III
- Secretary, Department of
Foreign Affairs (DFA)
- Secretary, Department of
National Defense (DND)
- Undersecretary, DND
- Undersecretary, Department of
Justice (DOJ)

Page 2
Hon. Raymund Jose Quilop

Hon. Florin Hilbay
Hon. Lourdes Yparraguirre
Hon. Jose Eduardo Malaya III
Hon. Neri Colmenares
Dr. Roland Simbulan
Atty. Merlin Magallona
Hon. Rene Saguisag
Atty. Harry Roque
Mr. Renato Reyes
- Assistant Secretary, DND

- Acting Solicitor General,
Office of the Solicitor General
- Ambassador
- Ambassador
- Party-list Representative,
Bayan Muna
- Center for People Empowerment
in Governance
- Dean, UP College of Law
- Former Senator
- UP Institute of International Legal
Studies
- Secretary-General, BAYAN
SENATORS STAFF
Atty. Fatima Panontongan
Atty. Abel Maglanque
Atty. Donna Manlangit
Mr. Arveen Patria
Ms. Fara Fuentes
Mr. Antonio Lapid
Ms. Tanya Perez
Atty. Minda Lavarias
Mr. Julius Palamos
Atty. Alain Baguisi
Mr. Hazel Villarba
Atty. Deegee Uy-Anastacio
Ms. Zheanne Aeron Dantis
Ms. Claire Hanopol
Ms. Kristela Castronuevo
Mr. Karl Esplana
Ms. Elaiza Balajadia
Ms. Marla Carandang
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
O/S
Santiago
Santiago
Santiago
Santiago
Santiago
Santiago
Santiago
Marcos
Marcos
Angara
Angara
P. Cayetano
P. Cayetano
P. Cayetano
Recto
Binay
Lapid
Trillanes
SENATE SECRETARIAT:
Ms. Putli Suharni Samanodi-Candao- Committee Secretary, Committee
on Foreign Relations
Ms. Eleuteria L. Mirasol
- Committee Secretary, Committee
on Constitutional Amendments
and Revision of Codes
Ms. Jocelyn A. dela Cruz
- Committee Stenographer, LCSS B

Page 3
Ms. Cleofe Caturla

Ms. Ma. Rosalinda J. Catadman
Ms. Carolina F. Driz
Ms. Paulette L. Manuel
Ms. Susana Grace L. Robles
Ms. Cristina D.C. Astrero
Mr. Larry Barruga
Ms. Aren J. Aguila
Ms. Eloi Tecson
Mr. Hernani Novero
Ms. Joanna Marie Toldeo
Ms. Christine M. dela Rosa
Mr. Ronnel Paulo C. Baldueza
Ms. Nikkie B. Cabarle
Ms. Kacy Marie H. Hernandez
Mr. Raul Balansag
Mr. Rolando Tancioco
Mr. Hizar B. Sarmiento
Committee Stenographer, LCSS B

-do-do-do-do-doCommittee A Staff
-do-do-doLCSS A
LCSS A
LCSS A
LCSS A
LCSS A
Legislative Page, OSAA-SSS
- do Audio Operator
(For complete list, please see attached Attendance Sheet.)

JADelaCruz
I-1
December 1, 2014
11:04 a.m.
AT 11:04 A.M., HON. MIRIAM DEFENSOR

SANTIAGO, CHAIRPERSON OF THE COMMITTEE ON
FOREIGN RELATIONS, CALLED THE HEARING TO
ORDER.
THE CHAIRPERSON. I understand that Senators Angara and
Marcos are coming and we proceed on that basis. If they dont come,
we shall strike everything out from the record. But in order to save
time, we will start.
We shall call our resource persons whom we thank for coming.
First[off-mike] to be followed by Dean Merlin Magallona and then the
Secretary of Defense, to be followed similarly by another person from
the Anti-EDCA panel.
First, let us deal with the rationale for this hearing. The Chair
verifies that it is not the intention of this hearing to compel the
President of the Philippines to submit EDCA after he has ratified it for
concurrence by the Senate. The Supreme Court has already made it
plain that the Senate does not have this power. Instead, our rationale
consists of certain provisions of no less than the Constitution itself. The
first is found in Article III, the Bill of Rights, concerning the peoples
right to information on matters of public concern. This matter has
raised a very high level of concern, not only among the students in
the campuses, but also among the professionals. And it is only right
that the Senate must respond to these calls for guidance.

JADelaCruz
I-1
December 1, 2014
11:04 a.m.
The second rationale for this hearing is the power given by the
Constitution to the two chambers of Congress to conduct so-called
inquiries in aid of legislation. In respect of this constitutional provision,
the Rules of Procedure Concerning Inquiries in Aid of Legislation of the
Senate provides, and I shall read for a little while for those of us who
are not from the Senate: Section 1. Power to Conduct Formal
Inquiries or Investigations. The Senator or any of its committees may
conduct formal inquiries or investigations in aid of legislation in
accordance with these rules. Such inquiries may refer to the
implementation or reexamination of any law or appropriation or in
connection with any proposed legislation or the formulation of or in
connection with future legislation or will aid in the review or
formulation of a new legislative policy or enactment. They may also
extend to any and all matters vested by the Constitution in Congress
and or the Senate alone.
And further on, in Section 3, we find this important sentence:
The filing or pendency of any prosecution of criminal or administrative
action shall not stop or abate any inquiry to carry out a legislative
purpose. In effect, therefore, the Senate has unburdened itself of its
opinion concerning that constitutional provision by stating that nothing
prohibits the Senate and in fact, this attitude is reflected by the
Supreme Court itself in its decision entitled Romero versus Estrada
where the Supreme Court said not even a judicial proceeding can serve
5

JADelaCruz
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December 1, 2014
11:04 a.m.
to inhibit the power of the Senate to conduct inquiries in aid of

legislation.
Today, let us start, first of all, with the provision on the
Constitution onnot the Senate Rules. Lets change that slide, please.
The slide on no treaty or international agreement. Article VII, Section
21, No treaty or international agreementKaya mahirap itong
intindihin. Ano ang agreement o dokumento na hindi pwedeng
pumunta sa Senado because the Constitution uses the very broad
phrase or international agreement. Ano pang agreement ang hindi
pwede diyan. No treaty. O maliwanag tayo, pag treaty hindi pwede.
Pero
pati
international
agreement.
No
treaty,
no
international
agreement shall be valid and effectivehindi lamang valid or

effective kung hindi valid and effective--unless concurred in by at
least two-thirds of the members of the Senate. Ay di ibig sabihin pala
kung baligtarin mo ito kung walang concurrence--and be careful, we
do not concur, we do not ratify a treaty. It is the President who ratifies
a treaty and the Senate merely concurs with the ratification. Having
clarified that, let us pay very careful attention to the wording of our
Constitution since it says, No treaty or international agreement shall
valid and effective. Both valid and effective are words you find here.
So both the validity, the effectivity depends on the concurrence of the
Senate. Ibig sabihin, kung walang concurrence ang Senado, walang
validity at walang effectivity. Paano po kaya maipaliwanag iyan?
6

JADelaCruz
I-1
December 1, 2014
11:04 a.m.
Baligtarin mo lang. Probably, we can see the world-view of the framers

of our Constitution in their way. They locked up that sentiment in
these words.
And in addition, let us go to the transitory provision. You can see
it for yourself. Well go to the middle of this provision which states,
After so and so foreign military bases One, bases. Number two,
troops or facilities. Kaya lahat na. Bases, troops, facilities, ano pa ang
matatawag mo na military bases. Nakalagay na lahat diyan. Foreign
military bases, troops or facilities, pinagbabawal, shall not be allowed
in the Philippines except under treaty duly concurred in by the
Senate etcetera. Ngayon pag-uusapan natin ngayon, napakahigpit
ng pananalita ng ating Constitution. Mayroon pa kayang lusot ang
Office of the President? Dahil mukhang gustong-gusto ng mga sumulat
ng ating-how do you say?Constitution--Konstitusyon na lahat
kailangan ang pagsang-ayon ng Senado. Ano ang lusot mo diyan sa
ganyang lengguwahe? Gusto ko talaga malaman.
So let us proceed with our hearings this morning hoping that it
will help at the very least, help to elucidate the Filipino public on this
issue of the day.
We call on the major proponent of the EDCA, Secretary Albert
del Rosario of the Department of Foreign Affairs.
Sir, it is your podium.

JADelaCruz
I-1
December 1, 2014
MR. DEL ROSARIO.
11:04 a.m.
Good morning, Madam Chair, Senator
Ferdinand Marcos Jr.

Thank you for the invitation to attend this meeting and for the
opportunity to speak on the EDCA in the context of our national
security goals and the larger regional environment.
Madam Chair, in 1951, the Philippines and the US concluded a
mutual defense treaty. As a new nation, we needed the protection and
assistance of a strong ally to rebuild our war-damaged country. In the
60 years/jadc

Caturla
II-1
December 1, 2014
11:14 a.m.
MR. DEL ROSARIO. In the 60 years, the global security

environment has unfolded in ways that we could not have foreseen.
The
Philippines
has
since
emerged
as
among
the
staunchest
democracies and fastest growing economies in the region. The nature

of threats has also expanded to include issues like terrorism, climate
change and pandemics.
On two many instances, the need for close
cooperation in humanitarian assistance and disaster relief has been

underscored.
In the Philippines, particularly in the last few years, there have
been direct challenges to our sovereignty from within our western
backyard. These challenges have started to directly impact our people.
For example, our fishermen have been barred from their
traditional fishing grounds in our Bajo de Masinloc. There is massive
reclamation occurring in the South China Sea including in our Kalayaan
Island Group.
We have devoted a bigger share of our resources to
strengthen our national security.
Considering our limited resources
and the pressing external challenges, however, assistance from our

allies can help bridge the gaps in our capabilities and allow us to have
the capabilities we need when we need them.
The US, our sole treaty ally has also had to respond to their own
set of challenges. Recognizing that the future of the US is linked to
Asia, they have embarked on a rebalance strategy hinged on the
strength of their alliances in the region.
The congruence of interest

9

Caturla
II-1
December 1, 2014
11:14 a.m.
underscores the continued relevance of the Mutual Defense Treaty.

The Manila Declaration which I had the honor to sign with Secretary
Clinton in 2012 reaffirmed our obligations under the MDT.
The MDT
remains the foundation of our bilateral security partnership. While we

have been implementing the MDT for over 60 years, we needed to set
more precise rules to achieve our higher level of defense cooperation.
The EDCA includes provisions on strengthening capacities for maritime
domain awareness and maritime security, as well as improving
interoperability.
In addition, as part of modern defense cooperation
activities, there is a strong component for humanitarian assistance and

disaster relief.
The EDCA also contains provisions that actually
implement existing law and policy in the Philippines but are not
contained in the VFA. These include the explicit affirmation of the ban
on nuclear weapons, a provision on the protection of the environment,
human health and safety, and the explicit exclusion of contractors from
the coverage of the VFA.
Madam Chair, on the question of whether EDCA should be
presented for Senate concurrence, we respectfully submit that this
may not be required. The reasons behind these are as follows:
a) The agreement has not actually allowed the establishment of
foreign military bases in the Philippines; and
b) Secondly, we are, in fact, merely implementing existing law
and policy as well as facilitating the undertaking of series of activities
10

Caturla
II-1
December 1, 2014
11:14 a.m.
which according to the Supreme Court are mandated under existing

agreements.
The EDCA also has very clear benefits for the Philippines in
addition to strengthening our defense capabilities.
It also allows or
enhance interoperability with the defense systems of our security

partners.
The
approved
activities
will
also
generate
economic
opportunities for our people in terms of employment and purchase of

local products, among others.
Particularly important is the humanitarian assistance and disaster
relief component, as the agreement will make readily available
critically needed HADR supplies and equipment.
The value of this
equipment and assistance was underscored during post-Haiyan relief

activities when this US equipment played a major role in saving lives.
At the end of the day, total US government support is, as estimated at
around $143 million for the relief and recovery efforts.
Madam Chair, President Benigno Aquino III ratified the EDCA last
June 6, 2014.
And the Agreement entered into force on June 25th
2014 in accordance with Article XII of the Agreement.

May I also point out, Madam Chair, that the United States also
considers the EDCA to be an executive agreement.
Considering the
current regional security challenges, it is the primary responsibility of

government to safeguard our territorial integrity.
adopting an all
of government approach towards
While we are
the
goal of
11

Caturla
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December 1, 2014
11:14 a.m.
strengthening our defense capabilities, we are also leveraging our

international partnerships including our enduring alliance with the
United States.
In this effort we see the EDCA as an important
instrument that implements our countrys existing national policies

with full respect for the laws of our land.
We look to your active partnership and to the benefit of your
good counsel as we exercise the tools of diplomacy in pursuit of the
national interest.
I thank you, Madam Chair.
THE CHAIRPERSON. Thank you, Secretary del Rosario.
I would like to acknowledge with gratitude the arrival of Senator
Marcos and Senator Angara who are both Vice-Chairs of this
Committee.
May I just ask this question, Mr. Secretary.
Constitution,
is
there
any
mention
of
the
In the entire
phrase
executive
agreement? I know since I studied in law school that the Constitution

mentions the word, treaty, mentions the phrase international
agreement.
But I cannot forwards and backwards find the word
executive agreement in the Constitution. My implication, of course,

is if it is not there, it is not allowed.
MR. DEL ROSARIO.
I think, Madam Chair, that it is not
mentioned in the Constitution. The executive agreement is not per se

mentioned.
12

Caturla
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December 1, 2014
11:14 a.m.
THE CHAIRPERSON. Is not mentioned. So, if it is mentioned

at all in our jurisprudence, it must be because of the Supreme Court.
Since it is not a legal discussion per se, it is mostly a political
discussion on what our public think about the EDCA.
But still I will just go to one more point. The Constitution, Article
VII, Section 21 provides, No treaty or international agreement shall
be valid or effective unless concurred in by at least two-thirds of all the
Members of the Senate.
That is the exact phraseology of our
Constitution. It begins with the negative notice that unlike the rest of
the Constitution which begins with positive pronouncements or
instructions, this one says, No treaty or international agreement.
Meaning that if there is any doubt, the doubt must be resolved against
the treaty, that at a very least is the meaning of that phraseology, No
treaty or international agreement
So, treaties are not allowed
unless they are concurred in by the Senate.
But the term
international agreement seems to encompass the whole of Gods

creation.
It appears to be the intention of the framers of our
Constitution.
What other instrument or document would fall under these
generic titles, a treaty and then international agreement? So, when it
says international agreement, it means conceivably documents like
the EDCA.
It does not allow the treaty or something like EDCA to
become valid and effective unless concurred in by the Senate.

13

Caturla
II-1
December 1, 2014
11:14 a.m.
May I have your comment? Why should it use the word treaty
or
international
agreement,
Why
then
it
just
use
specific
classifications or types of documents?

MR. DEL ROSARIO. Madam Chair, I understand that there are
MOUs which we have entered into in the foreign service which do not
require such concurrence. This is an example that we wanted to bring
up.
THE CHAIRPERSON. Yes. Well, my comment to that is, that
all of these MOUs that are cited may be or executive agreements are
but the result of an executive order signed by the executive branch of
government.
Does it necessarily bind the legislative branch or the
judicial branch of government just because in an executive order the

President said, There shall be executive agreements pursuant to these
qualifications?
It seems difficult to argue that one branch of the
government has the power to interpret the Constitution for the two
other branches except the judiciary.
MR. DEL ROSARIO. I understand, Madam Chaircpc
14

M.R. CATADMAN III-1
December 1, 2014
MR. DEL ROSARIO.
11:24 a.m.
I understand, Madam Chair, that the
Supreme Court has already recognized the executive agreement in a

decision that it has rendered.
THE CHAIRPERSON. Yes. In fact, in several decisions, but Im
going back to the Constitution itself, and I want to know from the
wording. Let me explain further like this. Our Constitution says, No
treaty, no international agreement shall be valid and effective unless
concurred in by at least two-thirds vote of all the members of the
Senate.
provision.
So this means, in the first place, that this is a prohibitory

It prohibits something because it begins with a negative,
No treaty... It is prohibitory. Now, if we remember under Article 5

of the Civil Code, prohibitory laws acts that are violative of prohibitory
laws are not valid or effective. That is what our Civil Code provides.
Acts executed against the provisions of mandatory prohibitory laws
shall be void. Were talking of a prohibitory law of the Constitution, a
prohibitory provision of the Constitution and our other book called the
Civil Code says, An act executed against the provision of a prohibitory
law, that law shall be void, therefore, since the law says no treaty or
international agreement shall be valid or effective without concurrence,
and we have now concurrence from the Senate, then any act pending
to forge the validity or the effectivity of such a law would be void,
according to Article 5 of the Civil Code.
15

M.R. CATADMAN III-1
December 1, 2014
11:24 a.m.
MR. DEL ROSARIO. I am not a lawyer, Madam Chair, but my

own personal opinion is that the conflicting opinions that we are
discussing here appears to create a dilemma between what the
Constitution allows, and what the Supreme Court has ruled.
THE CHAIRPERSON. Yes, I agree with you.
MR. DEL ROSARIO. Yes.
THE CHAIRPERSON. I agree with the Secretary.
And one more thing I would like to raise is this, if the
Constitution says that without Senate concurrence, then the EDCA, as
one of the international agreements referred to by the Constitution, if
it cannot be valid and effectivesupposed that the Supreme Court
rules on EDCA, I understand that the resolutions have rested, or that
the proceedings have been finished.
Suppose that the Constitution
rules on EDCA, then it would be ruling on an international agreement

that has not been concurred in and, therefore, is null and void.
We
would have a phantom document. It would not exist in constitutional

contemplation.
These are just intellectual excursions.
MR. DEL ROSARIO. I totally agree, Madam Chair.
THE CHAIRPERSON. Thank you, Mr. Secretary.
Do my fellow senators, including Senator Cayetano, have any
questions for the secretary? Otherwise, he is finished and well go to
Dean Magallona who is against EDCA.
16

M.R. CATADMAN III-1
December 1, 2014
11:24 a.m.
All right.
Thank you very much, Mr. Secretary.
Thank you for your
courtesy.
MR. DEL ROSARIO. Thank you.
THE CHAIRPERSON.
Dean Merlin Magallona, one of the
recognized experts in international law in Asia.

Please proceed, sir.
MR. MAGALLONA. Honorable Chair, Your Honors, members of
the Senate Foreign Relations Committee, with your permission.
Unfortunately, we have to begin with the premise that the EDCA
having entered into force as an executive agreement is now placed
beyond the reach of the Senate in the performance of its function to
give validity to EDCA as a treaty allowing foreign military presence.
Under this provision, Im referring to Section 25, Article XVIII of the
Constitution.
The fundamental law demands that foreign military
bases, troops, or facilities, to quote, shall not be allowed in the

Philippines except under a treaty duly concurred in by the Senate.
Under this constitutional mandate, Senate concurrence conferred on a
treaty of such nature becomes the constitutional device by which a
treaty in the nature of EDCA may be saved from Section 25, Article
XVIII, as a prohibition. Under the present circumstances, the Senate
is confronted with the reality that this constitutional mandate must
now apply as a prohibition in the absence of EDCA embodied in a
17

M.R. CATADMAN III-1
December 1, 2014
11:24 a.m.
treaty duly concurred in by the Senate. Taking into account the legal
and policy infirmities of EDCA, what may assume pertinence is the
constitutional certiorari in Section 1, Article VIII of the fundamental
law which reads as follows, Judicial power includes the duty of the
courts of justice to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government. Taking into
account the position of the Senate, I should like to ask the question, in
the event of the positive result in constitutional certiorari, may the
issue of expenditure of public funds be raised insofar as affected by the
illegality arising from lack or excess of jurisdiction on the part of the
Executive arising from a constitutional certiorari case? This may be
concern the public funds that may be used in the administration and
management of EDCA on the basis of the fact that EDCA is enforced as
an executive agreement and is turned down during the constitutional
certiorari.
In the alternative, may the Senate inquire into the budgetarial
implications of the support for the management or administration of
EDCA in the Philippine side on the basis of the positive result of the
constitutional certiorari making this undertaking more effective by the
Senate forming a subcommittee for EDCA of the Senate Committee on
Finance.
Even as we refer to the constitutional and legal status of
executive agreements in general, it remains undeniable and operative

18

M.R. CATADMAN III-1
December 1, 2014
11:24 a.m.
that
agreement,
the
conclusion
of
EDCA,
as
executive
contravention of Section 25, Article XVIII of the Constitution.
is
in
The
force of this constitutional mandate as a prohibition should clearly

drive home the act of cartelizing EDCA as an executive agreement as a
circumvention of this mandate. /mrjc
19

CFDriz
IV-1
December 1, 2014
MR. MAGALLONA.
11:34 a.m.
of this mandate.
This conclusion flows
from the admission on the part of the Solicitor General in his oral
arguments before the Supreme Court that EDCA has already entered
into force as an executive agreement which necessarily implies his
admission as to the substantive content of that executive order
namely, that it intends and provides for the right of the United States
government to build structure, storage of weapons, defense supplies
and materials, stationing of military forces or troops and other
personnel, vehicles and presence of military aircraft, vessels and the
establishment of agreed locations in the Philippine territory.
In brief, this admission of EDCA as an agreement allowing what
is prohibited in Section 25, Article XVIII of the Constitution in the
absence of a treaty concurred in by the Senate is admission is per
force on behalf of the President.
One rationalization for avoiding Senate concurrence on the
required treaty and for escaping from constitutional prohibition has
been reported by GMA News Online of 26 November 2014, as
articulated by the Solicitor General before the Supreme Court in his
response to the question from Justice Marvic Leonen as to why EDCA
was not submitted to the Senate. The Solicitor General answered and
I quote, subject to his correction, Because the President considered it
as an implementing agreement of the Mutual Defense Treaty and the
Visiting Forces Agreement. The view that there is such a thing as an
20

CFDriz
IV-1
December 1, 2014
11:34 a.m.
implementing treaty is a wild invention. To the credit of the Solicitor

General, this desire is not his own.
It sprung absurdly from the
ponencia in Nicolas versus Romulo which by the way it considers the

Visiting Forces Agreement as an implementing treaty of the Mutual
Defense Treaty combining this with the opinion of the Solicitor General
about
EDCA
as
an
implementing
treaty
this
makes
EDCA
an
implementing treaty of an implementing treaty in the VFA. The

absurdity doubles itself but something
more
goes beyond the
absurdity. The ponencia in question distorts the interpretation of the

United States Federal Law on treaties on international agreements in
order to arrive at the desired conclusion that is, that the highly
subjective concept of an implementing treaty which is non-existent in
US jurisprudence nor in public international law as a legal consent.
This interpretation or distortion of US law is an attempt to correlate the
status of treaties under Section 2, Article II of the US Constitution
proving that treaties shall have the advice and consent of the US
Senate. With that of international agreements which are not treaties
at all as governed by the Case-Zablocki Act
Congress.
This
correlation
is
to
the
effect
enacted by the US
that
international
agreements which are not treaties because they have not had the
benefit of advice and consent of the US Senate are required under the
Case-Zablocki Act to be transmitted by the US Secretary of State to
the US Congress.
21

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December 1, 2014
11:34 a.m.
Under the Case-Zablocki Act, therefore, in relation to the US

Constitution, an international agreement is either a treaty or not a
treaty. If it is not a treaty, then it is required to be transmitted to the
US Congress by the US Secretary of State pursuant to the CaseZablocki Act. Hence, the fact that an international agreement is within
the coverage of the Case-Zablocki Act as in the case of the VFA,
testifies that it is not a treaty.
Thus the Case-Zablocki Act provides
insofar as pertinent as follows, and I quote, The Secretary of State

shall transmit to the US Congress the text of any international
agreement other than a treaty.
I repeat, other than a treaty, to
which the United States is a party as soon as practicable after such

agreement has entered into force with respect to the United States,
but in no event later than 60 days thereafter.
That is about the
pertinence of the Case-Zablocki Act. The VFA was transmitted to the

US Congress by virtue of this provision on account of the fact that it is
not a treaty pursuant to the terms of this Act. And this appears to be
the only factor for the VFA being governed by this Act. But in the mind
of the ponencia, the VFA became an implementing agreement and this
is regarded as the reason for being subject to the Case-Zablocki Act.
Then the ponencia continues the distortion of this Act as follows, and I
quote: Notice can be taken of the internationally known practice by
the United States on submitting to its Senate for advice and consent
agreements that are policymaking in nature, with policymaking in
22

CFDriz
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December 1, 2014
nature underscored.
implementation
of
11:34 a.m.
Whereas, those that carry out for further

these
policymaking
agreements
are
merely
submitted to Congress under the provisions of the so called CaseZablocki Act within 60 days for ratification, (with the word ratification
underscored). Contrary to the ponencias claim, never is there in the
contemplation of the US jurisprudence nor in
international law the
categories of treaties into policymaking treaties and implementing

treaties which is the source of the theory that is being applied to
EDCA.
The ponencia is an obvious falsity when it asserts that
agreements transmitted to the US Congress for the purpose of

submitting them for ratification falsely implying that the Case-Zablocki
Act is a means of ratifying international agreements for purposes of
making them a treaty. It is not very clear where this wild invention
came from. But I trust that the present membership of the court will
not in any way follow the footsteps of this ponencia.
At any rate, dubious as its status is in US law, no possible
ground is being advanced as to why this implementing treaty theory
should be applied in the interpretation of the Philippine Constitution.
The thesis that the EDCA is an implementing agreement of the MDT
does not hold because of their qualitative differences in the governing
constitutions marked by the prohibition in 1987 Constitution against
foreign military presence in the Philippines in contrast to the presence
in Philippine territory of the two largest US military bases in the world
23

CFDriz
IV-1
December 1, 2014
11:34 a.m.
during the regime of the 1935 Constitution by which the MDT received
concurrence by the Senate at that time. The discontinuity of the MDT
and EDCA is further pronounced by the fact that the prohibition on
foreign military presence in the present Constitution/cfd
24

PLMANUEL
V-1
December 1, 2014
11:44 a.m.
MR. MAGALLONA. in the present Constitution

EDCA was introduced in the
as applied to
words of the Constitution, and I quote:
After the expiration in 1991 of the agreement between the Republic

of the Philippines and the United States of America concerning military
bases. On the whole, the MDT and EDCA are radically separated by
the fundamental change of circumstances characterized among other
confirmations by the end of the Cold War. Even the main orientation of
the MDT as to
its object
and purpose has moved away from
the
struggle against communism, to war against terrorism to containment

of China under the present strategic guidance on the Pentagon.
It appears
that the only
thing unchanging
is the highly
subjective theory of EDCA as the implementing treaty of the Mutual

Defense Treaty. In the end, the admission by the government that
EDCA is an agreement
allowing foreign military
presence gives
confirmation that EDCA is governed by Section 25, Article XVIII of

the Constitution, in particular, applying as a prohibition. As for proof
that its substantive
prohibition,
content
falls within
a reading of the text
the constitutional
of the executive
agreement
entitled EDCA will clearly show as evidence.

Let me now go into the MDT as the bible
of
US-Philippine
military alliances. Insofar as MDT supports to exercise the right of

individual
or collective self-defense between the United States and

25

PLMANUEL
V-1
December 1, 2014
11:44 a.m.
the Philippines is contrary and incompatible with the exercise of the

right of
self-defense under Article 51 of the United Nations Charter.
Under the Charter,
the state under
qualified to exercise
the MDT
illegal attack is the only entity
the right of individual self-defense, but under
the Philippines acquires the right to defend
the United
States under attack even if the Philippines is not under attack. And
the United States has the right to defend the Philippines if under attack
even if the United States itself is not under attack.
To repeat,
the United Nations Charter limits
individual self-defense
to be exercised by the
state
the right of
under
illegal
armed attack and only in the case of an actual armed attack against
itself without precluding therefore any other form of attack which
might be anticipatory.
Hence,
there exists a conflict between the
obligations of the Philippines under the MDT and its obligation under
Article 51 of the United Nations Charter. In which case, Article 103 of
the UN Charter becomes applicable. This provides, In the event of a
conflict
between the obligations of the
Members
of the
United
Nations under the present Charter, and their obligations
under any
other
the MDT
international agreementI am sure this includes
their obligations under the present Charter shall prevail. This article
of the UN Charter has been rendered imperative and it is considered
by commentators
as the
supremacy clause
of the
United Nations
Charter. If the use of force deviates from the requirements of the UN

26

PLMANUEL
V-1
December 1, 2014
Charter as
set forth
in Article
11:44 a.m.
51, such as
the use of force
contemplated in the MDT, it may fall under the prohibition of
the
threat or use of force under Article 2, Paragraph 4 of the Charter. It

provides as follows: All Members shall refrain in their international
relations from the threat or use of force against the territorial integrity
or political independence of any state or in any manner inconsistent
with the purposes of the United Nations such as the illegal use of
force purporting to be self-defense under Article 51.
In consideration of these factors, instead of regarding the MDT
with biblical awe, we should examine it instead from the viewpoint
of the dubious status in International Law and in the perspective of
its encroachment into our national sovereignty, not from the angle
of the so-called implementing treaty theory.
May I invite Your Honors to the theory of
state responsibility
under International Law? Of course, the essence of the EDCA

rotational presence
United States,
of
weaponsthe operative weapons
in particular in terms
such as the USS Washington
of aircraft and
that can accommodate
is the
of the
super vessels
hundreds of
tons.
In this case, let me invite your attention to the fact that the
EDCA is merely an implementation of the strategic guidance that is
now being
provision
enforced by the Pentagon. And may I take you

of the strategic
guidance
with respect
to
to the
nuclear
27

PLMANUEL
V-1
December 1, 2014
11:44 a.m.
weapons, the use of which is identified as one of primary missions

of the
United States
Armed Forces
under
the strategic
guidance
and, of course, there is the prospect that it may be implemented

through
the EDCA
right in the Philippines. The strategic guidance
says, and I quote, The United States
will maintain
a safe, secure
and effective arsenal of nuclear weapons. To continue, I quote, We

will field nuclear
adversary with
possible that our
forces that can

the prospect
of
under circumstances confront an

an acceptable
damage.
deterrence goals can be achieved with
It is
smaller
nuclear forces. This would reduce the number of nuclear weapons in

our
inventory and as well as
their role in the US National Security
Strategy. May this be implemented by the rotational basis under the

EDCA? And we will never know because
the
United States
government has been pursuing the issue of neither confirm or deny

with respect to the question
as
they have nuclear weapons
in
particular places.
However, last year, published in a mainstream newspaper in the
Philippines
is the disclosure of
Archives
of the United States
Department of State and what was disclosed by the United States

Department of State was a folder entitled Nuclear Weapons in the
Philippines. And, of course, we can identify the newspaper file and a
copy
of which I might
make public--of course, at least have been
made public.
28

PLMANUEL
V-1
December 1, 2014
11:44 a.m.
Now, of course, we have to see this nuclear weapon

the light of the
constitutional provision
which
question in
prohibits nuclear
weapons within Philippine territory. Has our Department of Foreign

Affairs and Department of Defense considered the prospect that the
nuclear weapons as it was done during the time of Nixon that the
Joint Chiefs of Staff
had to hide the nuclear button because they
found that President Nixon was becoming mad and it might therefore
press the nuclear weapon? May this bedanger come to us but we
cannot consider
the
negative or
positive prospect
with respect to
nuclear weapons especially under the regime of a . /plm
29

Sglrobles
VI-1
December 1, 2014
MR. MAGALLONA.
11:54 a.m.
under the regime of a US mad president
which is possible.
The other question that I should like to raise, Your Honor, is the
question of state responsibility in international law.
We, of course,
easily recognized that the rotational presence of the United States

forces by reason of EDCA would be in terms of war materials and
weapons.
There is no assurance under the EDCA even if we go
through it wholly that the Philippines is assured that the rotational

forces in the Philippines would in any way avoid aggression with
respect to the neighboring countries, in particular with China, in
relation to which the Pentagon is now developing weapons aimed at
the containment of China.
What remains, therefore, is that in case aggression or breaches
of peace may be committed by the United States forces that are on
rotational presence in the Philippines, what assurance do we have that
we will not ... of state responsibility in the sense that we will be
implicated as having committed internationally wrongful conduct
committed by the United States forces of war.
And lastly, Your Honor, general international law has absorbed
the general assembly declaration defining aggression.
And in the definition of aggression, there is one item of particular
interest to this hearing, Your Honor.
It says that it constitutes
aggression for a state to allow its territory to be used by another state

30

Sglrobles
VI-1
December 1, 2014
11:54 a.m.
in committing aggression against another state.

By the way, this item of the definition of aggression has now
been made an integral part of the definition of the crime of aggression
under their own statute of the international criminal court. I wonder,
this is of interest to the entire nation, is the EDCA an assurance to us
that the armed forces bases to be used by the Americans will not be
covered by this item of the definition of aggression which now
constitutes general international law?
Thank you, Your Honors.
THE CHAIRPERSON.
and
please
accept
the
Thank you very much, Dean Magallona,

Chairpersons
personal
professions
of
appreciation for your creativity in language otherwise unknown in the

legal profession.
Ganito lang, tatlong punto lang: una, ang sabi ng ating Saligang
Batas, walang kasulatan o kasunduan ang Pilipinas at ang ibayong
bansa na hindi dumaan muna sa Senado. Kaya ayaw nilang dumaan
sa Senado dahil siguro sa tingin nila ayaw ng taong-bayan dahil ang
mga pulitiko inuulit lang ang kagustuhan ng taong-bayan o baka
talagang talo sila, on the merits, sa mga pagrarason.
Basta ayaw
nilang makisama ang Senado. Na sinabi na ng ating Saligang Batas na

may papel ang Senado doon dahil hati ang Presidente at ang Senado
sa ating foreign policy power.
Mayroong mga bansa na ang poder na iyon, ang kapangyarihan
31

Sglrobles
VI-1
December 1, 2014
11:54 a.m.
na iyon ay para lamang sa Presidente. Pero dito sa ating bansa, hati

sila, ang Presidente at ang Senado.
Ngayon, dito sa EDCA gusto na mangyari ng Malacaang ay sila
lang ang may-ari ng EDCA. Walang pakialam ang Senado. Kaya tayo
mayroong meeting ngayon.
Ngayon, ang una kong pagtatanong ay ganito, ang lusot ng
Malacaang ay hindi naman ito treaty. Hindi naman ito kasunduan o
kasulatan, kung hindi ito ay executive agreement lamang. Sinabi na
sa atin kanina ng ating dalubhasa na walang pagsasalitang executive
agreement sa ating Constitution.
mayroong
pagsasalitang
Mayroong pagsasalitang treaty,
international
pareho ay dumaan sa Senado.
agreement
na
kailangan
Pero ang salitang executive
agreement, wala doon sa ating Saligang Batas kaya unang-una, saan

nanggaling iyon? At pangalawa, kung nandiyan na rin lang iyan, hindi
ba iyan naibago noong 1987 nuong nagkaroon tayo ng bagong
Constitution? Palagi na lang ang rason ay dati na iyan. Dati man iyan,
hindi ba naibago iyan noong 1987 Constitution? Pangalawa, ngayon,
wala silang rason kung bakit salungat sila sa Constitution. Na ang sabi
ng Constitution, ang kapangyarihan tungkol sa foreign policy ay hati
ang Presidente at ang Senado. Ngayon, ang gusto ng Presidente siya
lang.
Tatanggalin niya ang Senado.
Paano niya magagawa iyon?
Nagimbento siya, sabi niya kasi ito executive agreement, na wala

naman sa ating Saligang Batas.
Nag-imbento siya ng sarili niyang

32

Sglrobles
VI-1
December 1, 2014
11:54 a.m.
salita.
Pangalawa, sinasabi nila ngayon, Ah, ang executive agreement,
iyan ay kung sinusunod lang niya iyong nauna nang agreement niya.
Pagkatapos ngayon sinasabi nila itong EDCA kasunod lang naman ayon
sa Visiting Forces Agreement o kasunod lang naman ayon sa Mutual
Defense Treaty. Mayroon nang nauna at ito ay kasunod lang.
bagang
pag
nagpasa
ng
batas
ang
ating
Senado,
Para
mayroong
implementing rules and regulations, iyon ang ibig nilang sabihin.

Basta ang panibagong kasulatan na iyan o kasunduan na iyan ay nagimplement lang noong naunang treaty, iyan ay parang implementing
rules
and
regulations.
Tinatawag
namin
iyan
na
executive
agreement kaya pwede iyan.

Ngayon, ang pagtatanong natin diyan ay ganito, sino ngayon ang
magsasabi kung implementing lang ang treaty na iyan o panibagong
treaty iyan?
Ang sabi ng Malacaang, sila lang raw ang magsasabi.
Sila na nga ang nagkamkam ng kapangyarihan, sila pa ang magsasabi

ngayon kung kailan at ano ang makamkam nila. Hindi yata maganda
iyon.
Dahil ang ating gobyerno, tatlong sangay iyonjudicial,
executive, legislative, ay bakit sila lang?

hangarin ng ating Saligang Batas.
Hindi naman iyon ang
Hindi naman nakalagay na basta
tungkol sa foreign policy, mag-isa lang ang Presidente na mag-action

doon. Nakalagay nga nang maliwanag, sinulat talaga na, No treaty or
international agreement shall be valid and effective unless concurred in
33

Sglrobles
VI-1
December 1, 2014
11:54 a.m.
by at least two-thirds of all the members of the Senate. Kaya tingnan

mo, No treaty, no international agreement.
Ang ibig mong sabihin
ang EDCA hindi international agreement? Aber?

O, hinahamon ko iyong mga nagtatanggol ng EDCA na iyan.
Nakalagay sa ating Saligang Batas, No treaty or international
agreement.
O kung hindi treaty ang EDCA, ano iyon?
Hindi iyan
international agreement din? Kaya anong klaseng hayop iyon? May I

ask?
Dean Magallona.
Dean Magallona is an expert in international
law. In fact, you have your own document here, A Critical Review of
the EDCA.
Under the Vienna Convention on the Law of Treaties, is
there mention of executive agreement and any definitions or criteria, if

any?
MR. MAGALLONA.
Your Honor, may I define a dilemma for the
Senate?
THE CHAIRPERSON.
MR. MAGALLONA.
Yes, please.
Well, its true that we have the mandate of
the treaty clause of the Constitution in Section 21, Article VIII.
It
says, No treaty or international agreement shall be valid and effective

law unless concurred in by at least two-thirds of all the members of the
Senate.
The problem is, may the Senate act on a treaty except when it is
transmitted by the President with the instrument of ratification signed
34

Sglrobles
VI-1
December 1, 2014
11:54 a.m.
by him? If the President before refuses, and under the circumstances

the President certainly will refuse for the reason that it has already
been inoperative as an executive agreement and, certainly, we cannot
expect the President under the circumstances to transmit, EDCA to the
Senate for concurrence. And, certainly, the Senate may not be in the
position to express concurrence unless the transmission of the treaty
with the instrument of ratification signed by himwith the request that
the Senate express/sglr
35

CDAstrero
VII-1
December 1, 2014
MR. MAGALLONA.
12:04 p.m.
that the Senate express concurrence on
EDCA. And so the problem of the Senate is, may it act in concurrence
of a treaty without transmission from the President and
THE CHAIRPERSON. It will be a treaty that does not exist?
MR. MAGALLONA. And especially in the present circumstances
where the EDCA is already enforced as an executive agreement and I
suppose that this kind of device is really intended to escape EDCA from
the prohibition under the Constitution.
THE CHAIRPERSON. Absolutely. Kaya iyan pinalagay doon sa
EDCA.
This document will take force on so and so date after the
signature of the officials mentioned here para mawalan na nga kami ng

bisa. Kaya kami naman sa Senado, hindi naman sa gusto kaagad hindi
magsang-ayon sa presidente o kaya obstructionist kami, kung hindi,
gusto namin bigyan naman kami sana ng sapat na respeto.
Eh,
hinahati ang kapangyarihan sa amin di dapat gampanan namin ang

aming kalahati.
Hindi na ang executive branch lang ang kumikilos
doon.
Ngayon, question diyan talaga, is EDCA really in force? Can you
force the Philippines to comply with certain duties, obligations or
responsibilities under an international agreement without following the
protocol instituted in the Constitution for these procedures? Can you
act outside of the Philippine Constitution? Dahil iba ang sinasabi ng
36

CDAstrero
VII-1
December 1, 2014
12:04 p.m.
ating Saligang Batas, ah. Ay bakit tayo ngayon gumagawa ng paraan

na hindi ayon sa ating Saligang Batas at sinasabi nating tama ang
ginagawa natin?
Ang maliwanag dito ay ganito, ang sabi ng ating
Constitution, No treaty or international agreement shall be valid and

effective.
Sabihin ngayon ng Malacaang, effective na, epektibo
na, already in force na ang EDCA.

valid?
Pero what about the word
Can an invalid document be effective?
Of course not. Any
person with brains at elementary level can answer that question. That
is the reason why we are holding this hearing. At first, out of courtesy
to the judicial branch of our government, we did not want to institute
our proceedings together with the judicial proceedings that seem to be
ongoing at that time. But I understand from the exchanges during the
deliberations that it has become relevant as to whether the Senate has
taken a position, if so what it is. I will limit myself to this comment
and well ask my fellow senators if they wish to ask a question.
From Dean Magallona? Otherwise, we shall go on to Secretary
Gazmin and then after that to Senator Saguisag.
Secretary Del Rosario.
MR. DEL ROSARIO.
Madam Chair, may I be allowed to correct
myself in terms of a question that you had asked of me and I think I

gave you the wrong answer?
THE CHAIRPERSON. Yes, please, go ahead.
37

CDAstrero
VII-1
December 1, 2014
12:04 p.m.
MR. DEL ROSARIO. The question was, if I recall correctly, is

there any mention of an executive agreement in the Constitution?
THE CHAIRPERSON. Yes.
MR. DEL ROSARIO.
And I said that to my knowledge, there
was no
THE CHAIRPERSON. No.
MR. DEL ROSARIO. I stand corrected on that, Madam Chair.
On Article VIII of the Constitution, Section 4, it says that all cases
involving the constitutionality of a treaty international or executive
agreementSo, there is a mention of an executive agreement in the
constitution. And additionally, if I may
THE CHAIRPERSON.
May I have the number please of the
Article?
MR. DEL ROSARIO.
Its Article VIII
THE CHAIRPERSON. On the judiciary.

MR. DEL ROSARIO.
...on the judicial department, Section 4,
Paragraph 2.
THE CHAIRPERSON. Yes, please, go ahead.
MR. DEL ROSARIO.
I think the point that Im trying to bring
out, Madam Chair, if youll allow me is there is a mention of an

executive agreement there.
38

CDAstrero
VII-1
December 1, 2014
12:04 p.m.
THE CHAIRPERSON. This provision is an old timer. Its been

in our Constitution a long, long time. It is entirely possible that those
who wrote it were aware of the concept of an executive agreement but
not of the present attitude and mindset of the framers of the new 1987
Constitution.
And besides, this provision concerns the jurisdiction of
the Supreme Court.
It has no mention of any powers to be derived
from the mere mention of the words that are enumerated here.
MR. DEL ROSARIO.
If I may?
THE CHAIRPERSON. I was actually referring to any mention of

an executive agreement in the sense that there is a definition of what
an executive agreement is, that there are criteria set on what is an
executive agreement and when can it take place.
MR. DEL ROSARIO.
Youre correct, Madam Chair.
May I bring up another point, Madam Chair?

THE CHAIRPERSON. Yes please.
MR. DEL ROSARIO.
There was a question as well on who
determines whether an agreement is a treaty or an executive

agreement? I believe that was brought up earlier.
THE CHAIRPERSON. Yes.
MR. DEL ROSARIO. Under Executive Order 459, the Executive
Order, Madam Chair, recognizes DFAs role to determine whether or
not an agreement is a treaty or an executive agreement and I think
39

CDAstrero
VII-1
December 1, 2014
12:04 p.m.
the Supreme Court has recognized this in the case of Pimentel versus
the Executive Secretary.
THE CHAIRPERSON. Yes, that is correct. But I was thinking of
the tricameral branches of our government and I was saying that its
the executive branch who issued executive order.
In the executive
order, it gives itself, through the Department of Foreign Affairs, certain

powers.
That cannot bind by any means the other two branches of
government. It can bind the executive branch.

Is there any other question?
Senator Cayetano.
SEN. P. CAYETANO. Madam Chair, no question. I just would
like to put on record that I am happy to be educated by my former
professor, Dean Merlin Magallona.
It has been very interesting and
informative for me. I felt like a student again but, thankfully, you will
not ask me to stand up and recite although I took notes and I think I
would do a good summary.
Thank you.
THE CHAIRPERSON.
Specially Case-Zablockie. The Case-
Zablockie is completely irrelevant to our case.

Well, thank you very much, Dean Magallona.
And now, let me call the Secretary of National Defense,
Secretary Voltaire Gazmin.
40

CDAstrero
VII-1
December 1, 2014
12:04 p.m.
MR. GAZMIN. The Honorable Miriam Defensor Santiago, Chair

of Foreign Relations Committee, the distinguished members of the
Committee, ladies and gentlemen.
It is the primordial duty of the Armed Forces of the Philippines to
defend the Philippine territory and sovereignty.
It is, therefore, our
fundamental task to prepare as best as we can for any eventuality. As

Secretary of National Defense, as I had practiced in the various
positions I held in my career in the AFP, I have focused my efforts in
preparing our troops at the highest level and implement all programs
that would enable our troops to perform their mandate with the least
cost of lives. It cannot be denied that we have experienced a rising
level of tension in relation to our maritime affairs.
Exercising the
principle of self-help, your defense and military establishments have

embarked on a reenergized AFP Modernization Program that holistically
seeks to address all security issues whether external or internal,
traditional or non-traditional.
May I take this opportunity to reiterate our most profound
gratitude for the leadership and support of President Benigno S. Aquino
III and the legislature in providing substantial budgetary support for
the AFP Modernization Program.
Historically, this has been the
greatest financial budgetary support received by the AFP.
It is
unfortunate, however, that our starting point for the modernization
41

CDAstrero
VII-1
December 1, 2014
12:04 p.m.
program of the AFP is not at all good. We need sufficient time to be

able to effectively plan and implement the procurement of the defense
equipment that would enable the AFP to provide credible defense for
sure. As it is acknowledged/cda
42

JADelaCruz
I-2
December 1, 2014
12:14 p.m.
MR. GAZMIN. As it is acknowledged that there are present

gaps in our capabilities, I must, however, assure all that your AFP
despite any lack in equipment continue to remain steadfast in its
commitment to fight for and protect the Filipino people.
In view of the foregoing, a more effective and efficient
implementation of our current defense cooperation practices with the
United States will definitely serve our security interests. Under the
Mutual Defense Treaty of 1951, it is already an established policy that
the Philippines and United States obliged each other to develop their
individual and collective capacity for mutual defense. This policy of
mutual capacity building was reaffirmed in the Visiting Forces
Agreement of 1998 where joint training exercises and activities, with
approval of the Philippine government, were allowed to be temporarily
implemented
within
the
Philippine
territory.
It
is
our
humble
understanding that the conduct of joint training exercises between the

Philippines and the US already stand as an established defense policy.
May I be allowed to contextualize how these training exercises
are planned and implemented on a regular basis? Every year, the
Mutual Defense Board and the Security Engagement Board comprising
of AFP and US Pacific Command officials discuss and agree on the
training exercises and activities to be conducted in the following year.
During
the
planning
of
these
activities,
various
practical
and
43

JADelaCruz
I-2
December 1, 2014
12:14 p.m.
operational considerations arise. Among the many are: Where will

these troops stay? Which training structures such as firing ranges and
rappel towers will be needed? When will the visiting aircrafts and ships
arrive? Construction of structures that will address these practical and
operational questions will then facilitate the conduct of training
exercises. Other questions pertaining to pre positioning will include:
What would be used for the training exercises? Where do we store
them? Will they be needed in the next training exercises? Based on all
these, it
is
our
position
positioning activities,
Cooperation
details
in
as
agreement
the
conduct
that
provided
are
of
with greater clarity addresses

a more
effective
the
construction
under
operational
training
the
the
and
Enhanced
matters
exercises.
operational
and
the
pre
Defense
necessary
Therefore,
EDCA
requirements
for
implementation of the exercises.
It bears stressing that the AFP modernization program will

benefit from EDCA. Under the revised AFP Modernization Law, one of
the major components of the modernization program is bases
development. We will plan for the construction of structures to be built
under EDCA that would also complement the modernization program.
Through this, we will maximize the budget provided to the AFP from
Philippine funds for the procurement of modern defense equipment.
44

JADelaCruz
I-2
December 1, 2014
12:14 p.m.
We also envision EDCA to be able to provide greater training

opportunities for our AFP including our pilots and navy men who will be
able to familiarize themselves with modern technology so that when
our own modern defense equipment eventually arrive, the AFP will be
hitting the ground running already equipped in significant training
which use similar modern equipment.
Under EDCA, we will also synchronize the conduct of joint
exercises and activities in order to address our present capability gaps
in maritime domain awareness and maritime security and humanitarian
assistance and disaster relief.
In closing, we recognize that the circumstances we find ourselves
in are not ideal. We must hasten, therefore, our own modernization
program, at the same time strengthen our partnership because we
must do what we can.
Thank you, Madam Chair, for this opportunity.
THE CHAIRPERSON. Thank you too.
Isang tanong lang: Halimbawa, sa West Philippine Sea mayroong
Pilipino na barko, civilian o military na binaril ng Intsik. Ano ang
gagawin ng Amerika? Basta nagbarilan sila.
MR. GAZMIN. Kasama ho sa agreement natin na mahihila natin
ang Amerikanong sumama sa away kung ito ay nangyari.
45

JADelaCruz
I-2
December 1, 2014
12:14 p.m.
THE CHAIRPERSON. Ano ho ang ibig sabihin? Pag binaril silat

nag-report kaagad in a matter of--under an hour, will the Americans
automatically come to the aid of the Philippines in the sense that they
would send aircraft or sea craft to defend and possibly even to shoot at
the Chinese?
MR. GAZMIN. It goes through a process, Madam Chair.
THE CHAIRPERSON.
By tht time baka lumubog na iyong
barko. Ang gusto natin ay iyong kaagad-agad na mayroon naman

tayong maasahan na magtatanggol sa atin. Ano ho ang proseso? How
much time will it take, will those processes take?
MR. GAZMIN. Mahaba ho iyong proseso dahil it will go through
a constitutional process.
THE CHAIRPERSON. So it will not come immediately to the aid
of the Philippines. Is that a fair statement? Hindi kaagad-agad babarilin
ng Amerika. Kasi ang hindi maintindihan ng ating madla ay kung ano
ang mangyari sa atin, ano ang gagawin ng Amerika? Sila ba ay magaaksyon na para bang sila na rin ang natamaan o laban na rin sa
kanila ang ginawa na iyon o maghintay muna sila, mayroon pa silang
mga meeting at mga coordination?
MR. GAZMIN. Ang EDCA naman ay nasisilbing deterrent para
hindi gawin noong Intsik iyong gagawin nila sa Pilipinas.
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THE CHAIRPERSON.
12:14 p.m.
So that is only a hypothetical line of
defense. We are just hoping in our hypothesis that they will not shoot.
It is the shooting where we are afraid of. So suppose they shoot us
anyway, whatever their pretext might be: illegal fishing, poaching,
unprovoked aggression, etcetera.
MR.
GAZMIN.
Kinakailangan
hong
dumaan
sa
kanilang
constitutional processes iyong pangyayari bago sila makialam.

THE CHAIRPERSON. Thats under the Mutual Defense Treaty.
Noon pa iyong 1951.
MR. GAZMIN. Opo.
THE CHAIRPERSON. Hanggang ngayon ganoon pa rin ang
Amerikano. We have to go through our constitutional processes, ibig
sabihin dadaan pa sila sa Kongreso nila, kukuha pa sila ng sang-ayon
ng kanilang Kongreso. Hindi basta-basta mag-o-order lang ang
Presidente nilang bombs away. So kung ganoon iyon, matatagalan
muna iyon bago tayo magkaroon, kung mayroon man, ng tulong galing
sa Amerika. Iyon ang gustong malaman ng ating puliko kasi. Ano ang
mapapala natin sa EDCA? Iyon ba, pag inatake tayo ng Tsina, kaagad
atakihin din sila ng Amerika na para na rin ang Amerika ang inatake?
And the answer is that it will not automatically come to the aid of the
Philippines except until after constitutional processes of America have
been complied with.
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12:14 p.m.
MR. GAZMIN. That is right, Your Honor.

THE CHAIRPERSON. Senator Marcos.
SEN. MARCOS. Thank you, Madam Chair. Just a quick question.
This is very much in relation to the question of the Chair. In your view,
sa inyo po, Secretary Gazmin, ano yung ibig sabihin nung sinabi ni
President Obama na hindi makakapangako ang Estados Unidos na
makipaglaban kahit na sino ang umatake sa Pilipinas? Because ang
nasabi mo kanina ay pagka may nangyari na ganoon, nagkaputukan,
ay mahihila natin ang Amerika para tayo ay tulungan. Ngunit sinabi
niya, maliwanag na maliwanag, that the United States cannot promise
that it will go to war if the Philippines is attacked. Kayat napuna ko rin
na sa inyong salaysay ay pinag-usapan lamang ninyo ay training at
saka pagpatibay ng ating mga AFP at saka iyong pampaganda ng ating
maritime security. Hindi natin napag-usapan kung ano ba talaga ang
inaasahan natin sa Amerika. Kayat doon sa sinabi ni President Obama
nung kanyang bisita rito, ano sa palagay ninyo ang ibig sabihin noon?
Na hindi makapangako ang Amerika na sila ay lalaban para sa Pilipinas
kung tayo man ay inatake?
MR. GAZMIN. Ang sabi po/jadc
48

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December 1, 2014
MR.
GAZMIN.
Ang
sabi
po
ni
12:24 p.m.
President
Obama,
ang
commitment ng US ay ironclad. Ibig sabihin ay matibay iyong kanilang

commitment sa atin.
Ngayon, tayo ay naniniwala dahil ito ang
pinakamataas na Amerikanong nagsabi nito sa commitment na ito.

SEN. MARCOS. Matibay ang commitment. Ngunit, anong ibig
sabihin ng commitment na iyon? Ano ang naipapangako ng Amerika,
hindi lamang sa Mutual Defense Treaty, kung hindi pati na dito sa
EDCA na sila ay tutulong sa atin kapag nagkaroon ng giyera?
THE CHAIRPERSON. Please excuse me.
I remember that President Obama paid a state visit to Japan.
And then he was asked since there are certain islands of Japan, the
ownership of which is in dispute.
He was asked, Will the United
States go to war if the Japanese islands are invaded? And they said,
Yes. And eventually he was asked, Will the United States go to war
if the Philippines is invaded? And they said, No. Thats on record.
SEN. MARCOS. Yes, Madam Chair. That is precisely what I am
alluding to.
And I would like in the light of our examinations as to
whether or not the EDCA provides us additional security or strengthens

our commitments to one another vis--vis the United States and the
Philippines.
Department
I was asking what, in fact, is their interpretation, is the

of
National
Defenses
interpretation
of
these
pronouncements that President Obama made? And beyond that what
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we have in the EDCA, as to what exactly the response of the United

States will be should we find ourselves in a shooting war.
MR. GAZMIN. Well, right now, Your Honor, we use EDCA as a
deterrent to any threat to our security.
As we are using this, we
continue to fill in the gaps to our modernization program.

SEN. MARCOS.
A deterrent.
Ibig sabihin na parang hindi
naman nananakot o nagsasabi na Huwag kayong lumaban sa amin

dahil lalabanan namin kayo. Sabi sa atin, Hindi kami lalaban para sa
Pilipinas.
So, paano magiging deterrent iyon?
Dahil sasabihin ng
kahit sino Paputukan nga natin iyang barko ng Pilipinas. Hindi tayo
matatakot dahil sinabi na ng
giyera para sa Pilipinas.
Amerika hindi naman sila makikipag-
So, thats not a deterrent.
Why will an
aggressive power have second thoughts or be afraid of attacking us

when nobody is going to come to defend us except our own armed
forces?
MR. GAZMIN. With the deterrence na nangyayari nga ngayon,
kita niyo, hindi ho tayo inaatake doon sa ating pag-resupply nung ating
mga tropa sa Ayungin Shoal although we have skirmishes but not
caused a shooting war.
SEN. MARCOS. Thank you, Mr. Secretary.
I think that is due to the bravery and skill of our own
servicemen.
I dont think the Americans played a part in that.
But
never mind, if that is your interpretation.

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12:24 p.m.
Thank you, Madam Chair.

THE CHAIRPERSON.
Senator Cayetano.
SEN. P. CAYETANO. Thank you, Madam Chair.

I was part of the Southeast Asian delegation that went to Japan
about a year ago.
And part of the objective really was, of course,
Southeast Asian cooperation with Japan. And another part of it clearly

to me was the intention of Japan to make known to us their desire to
amend their Constitution or whatever legal instrument they had to
precisely allow them to defend themselves. Because after World War
II, my little understanding of their constitutional or whatever legal
instrument they have is that they are not allowed to raise their military
arms and the US is supposed to defend them.
So that to me is a
biggest difference between the response of the President of the United

States to Japan because they have an agreement where the US will
step in precisely because they had to put down their military arms.
And the agreement that the US has with us is very different.
That is my understanding from my visit to Japan. And what I felt was
a very strong plea on their part to convince the Japanese citizens but
also their neighbors that this is something they have to do in light of
recent development.
My very quick question is, and I dont mind if its answered in the
course of the discussion. When I quickly read the purpose and scope
of EDCA, and this is a follow-up to the Chairpersons question on will
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the US come and specifically defend us or will it attack China for that
matter. Under EDCA, the purpose and scope, Article I, it specifically
says that, The parties separately and jointly will maintain and develop
the individual and collective capacity to resist armed attack.
So,
resist armed attack, I imagine is different from aggressive or an

active attack after we are attacked. Iba pa siguro iyon sa resist. So,
that doesnt seem to be covered here.
The second is, it says, That the parties shall help maintain and
develop additional maritime securities.
Again, thats preventive--
and shall provide humanitarian assistance. So, that means pagtinira

na tayo pagka nagkaroon ng away tutulungan lang nila tayo, wala pa
ring overt action so far from my reading.
And then finally, Paragraph 3, it says. And shall provide such
other activities as maybe agreed upon.
So, thats my question.
Where here does it specifically say that the US will come in, step in,
defend us or attack any other country that attacks us?
Thank you.
MR. BATINO. With the permission of the Honorable Chair.
Thank you, Madam Senator, for your question.
The purpose of EDCA, as it implements the Mutual Defense
Treaty is really confined with defense, with the concept of defense.
And it is through EDCA that we envision a greater preparation
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mechanism for the mutual defense to be able to implement it

effectively in the future.
We agree with the observation of the Madam Senator that in
relation to EDCA, the focused concept is defense.
Thank you.
THE CHAIRPERSON. Thank you.
Let me now call on former Senator Rene Saguisag and after him,
Solicitor General Florin Hilbay.
MR. SAGUISAG. Magandang umaga po sa inyong mga Senador
at sa mga nandito sa hall na ito.
I dont really have much to add to what I have heard. Gusto ko
lang muna hong bumanggit doon tungkol sa what just came up.
In August 1976, pinalakol ng mga North Koreans si Lieutenant
Bonifas sa 38th Parallel. Anong ginawa ng Kano? Natameme, wala.
In January 1968, kinuha ng North Korea ang USS Pueblo. One
year na na-detain.
It was only towards Christmas of 1968 that the
Americans were released. Anong nagawa ng Kano? Tameme.

In 1941, we were one huge military base of the Americans.
When the Japanese came, well, it was good that Churchill called the
Filipino soldier as the finest warrior in the world. Kasi ho in the end,
ang kailangan diyan puso, puso ng Vietnamese, tinalo ang Frances,
tinalo ang Kano.
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So, I agree with Lord Palmerston, A country has no permanent

friends, no permanent enemies, only permanent interest.
I happened to have seen again Pearl Harbor kahapon.
Colonel
Doolittle led that Raid in Tokyo on April 18, 1942cpc
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M.R. CATADMAN III-2 December 1, 2014
12:34 p.m.
MR. SAGUISAG. on April 18, 1942, and after their successful

raid they run out of fuel.
Saan pumunta? Sa China, where they were
protected by the Chinese.

Kaya dito po, ang main point lang ho natin, kung hindi natin
pagpipitaganan ang ating sariling Saligang Batas, who else will?
Kalilinaw ho sa Section 21 of Article VIII and Article XVIII, Section 25
that no foreign troops or facilities can be reinstalled here without the
concurrence of the Senate, which has an exalted role in foreign
relations shared with the President. Kaya dito ho kung hanggang hindi
ipapasa sa inyo, I hope it will be in some kind of suspended animation
until Mr. Aquino is persuaded to follow the constitutional institutional
arrangement.
Iyon din hong duration may automaticity, 10 years
unless repudiated.
It can go on and on.
Kaya iyong apo ko hong
anim na taon lang mahilig magsundalo, may be involved in that

shooting war.
And that is why it cannot be decided by one man alone
with one or two others. Noong panahon namin dito, the one who dealt
with us, Secretary Manglapus, a former colleague, a lawyer, there was
transparency and there was involvement.
Hindi lang pinalagay ng
Malacaang na sila lang ho ang mga anak ng Diyos.

nangyayari dito.
Iyon ho ang
My good friends, Mr. Aquino, Mr. Gazmin, they
should involve those of us who would really feel the consequences. Ako
ho medyo last quarter na, last two minutesbaka nga ho nasa predeparture area nabut I care for my apos. I want them to have a say.
55

12:34 p.m.
Dito echapwera kayong madlang people, kami lang ang mga anak ng
Diyos, iyon ho ang dating nito.
I regretted to differ with my good
friend, the President, who I support, maybe 99 percent of the way, but
not here. His own mother called Senator Butz Aquino and me in 1991
to ask for our vote, and we told her gently, Please ask us another.
Dito din ho pinatawag kami ng anak ng July 1, kami ni Senator Bobby
Taada, and same thing, we said, You may not ignore the Senate.
Pero ang lumabas ho sa diyaryo, Huwag niyo nang pansinin iyong
dalawang matandang iyon baka interbyuhin niyo pa iyon, et cetera.
Iyon nga ho pagpitaganan naman kaming medyo last two minutes or
pre-departure area na ho because as you may recall, I once worked
here, and I was very proud of our Senate which was not ignored by his
mother.
Kaya dito ho ang pakiusap ko sa inyo siguro please pass a
Senate resolution na in this matter the Senate may not be ignored.

Maraming salamat po.
THE CHAIRPERSON. Thank you, Senator Saguisag.
If there are no other questions, well call on Solicitor General and
after him, we will call on Atty. Harry Roque.
MR. HILBAY.
Madam Chair of the Senate Foreign Relations
Committee, Honorable Senator Miriam Defensor Santiago, Senator Pia

Cayetano, Senator Ferdinand Marcos Jr., good morning.
56

12:34 p.m.
We consider it a privilege to be invited to this mornings session

on matters relating to the Enhanced Defense Cooperation Agreement
between the Republic of the Philippines and the United States.
In order to assist this honorable committee, if I may, I would like
to focus my statement on the constitutional law aspects of the EDCA,
especially those that were discussed in last weeks oral arguments
before the Supreme Court. In particular, we would like to restate the
governments position on the nature of the EDCA as an executive
agreement.
The characterization of the EDCA as an executive agreement
rests on the concept that the President has the authority to enter into
implementing agreements pursuant to existing treaties. For purposes
of comparison, allow me to point out that the United States recognizes
four different types of international agreements:
The first is the
treaty, which is an international agreement entered into by the

President with the advice and consent of the Senate;
The second is the congressional executive agreement which is an
international agreement entered into by the President with the
approval and authorization of the entire Congress;
The third is the executive agreement which is an international
agreement entered into by the President to implement a treaty. This is
the overwhelming number of agreements entered into by the United
States president;
57

12:34 p.m.
The fourth is the sole executive agreement which is an

international agreement entered into by the President on his own
authority.
With the exception of congressional executive agreements,
Philippine practice coincides with these categories of international
agreements.
This practice is found in Executive Order No. 459,
providing for the
guidelines in the negotiation of international
agreements and its ratification.

The power of the Philippine president to enter into executive
agreements to implement existing treaties also finds support in
jurisprudence. For example, in the often cited case of Commissioner of
Customs versus Eastern Sea Trading, which describes executive
agreement as adjustments of detail carrying out well-established
policies.
Executive agreements are also explicitly recognized in our
present Constitution. In Article VIII, Section 5, paragraph 2(a) which
gives the Supreme Court jurisdiction over all cases in which the
constitutionality or validity of a treaty, international or executive
agreement, is in question.
Theres a reason why executive agreements are not found in
Article VIII or are found in Article VIII, not in Article VII, and that is
because only treaties and international agreements need concurrence.
Executive agreements found in Article VIII need no concurrence.
58

12:34 p.m.
One may ask, in particular reference to the EDCA, what does this
executive agreement implement?
The answer, Madam Chair, is that the EDCA implements the
Mutual Defense Treaty of 1951 and the Visiting Forces Agreement of
1998.
The MDT has two important operative principles: the first is the
principle of defensive reaction in Article IV, which involves assistance
in the case of an armed attack on either of the parties in the Pacific
area.
The second is the principle of defensive preparation in Article II.
It states that in order more effectively to achieve the objective of this
treaty, the parties separately and jointly by self-help and mutual aid,
will maintain and develop their individual and collective capacity to
resist armed attack.
On the other hand, the Visiting Forces Agreement, another
treaty, specifically allows into our territory the presence of US troops
and personnel, equipment, materials, supplies, other property, vessels,
and aircraft. It is the position of the President, as commander-in-chief,
chief executive, and chief architect of foreign relations that the
principle of defensive preparation in the MDT and the Visiting Forces
Agreement constitute the totality of the licenses and authorizations
needed for the President to enter into the EDCA as an executive
agreement.
59

12:34 p.m.
In material terms, what this means is that insofar as the

presence of U.S. troops, personnel, equipment, materials, supplies,
vessels, aircraft are concerned, the license has already been secured
through the VFA.
On the other hand, insofar as improvements and infrastructure
works on Philippine military bases and facilities are concerned, the
license has already been secured through the MDT/mrjc
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MR. HILBAY. secured through the MDT. A significant aspect

of the Philippines objective of establishing minimum credible defense is
the improvement of our runways, barracks, ports and hangars. These
infrastructure improvements on Philippine military bases and facilities
jibe perfectly with the MDTs concept of defensive preparation. It is,
therefore, consistent with the MDTs defensive cooperation principle to
allow the US to assist the Philippine government in the improvement of
Philippine military bases and Philippine military facilities.
There are some who argued that the EDCA is a treaty and that it
cannot be couched as an executive agreement because it allegedly
allows foreign military bases and foreign military facilities.
First, Article V of the EDCA clearly states that the Philippines
shall retain ownership of and title to the agreed locations? And so by
clear consequence of law, these locations are not a situs of
extraterritoriaity. They are Philippine territory and Philippine property.
Second, the United States may be permitted by the Philippines to
construct and improve infrastructure in these locations.
The United
States, however, will not be building in the concept of an owner. They

will be building for the Philippines. This is because under the EDCA,
All buildings, non-relocatable structures and assemblies affixed to the
land in the agreed locations including once altered or improved by US
forces remain property of the Philippines.
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Third, the use and access of Philippine military bases will be

restricted and consistent with our national security interest for the
following reasons:
1) Such use and access will be for activities that must be
approved by the Philippines. No prior approval, no access and use of
areas and facilities;
2) Such use and access must be on a rotational basis
intermittent and temporary;
3) The government shall have access to the entire area of the
locations;
4)
The government shall retain primary responsibility for
security with respect to the agreed locations;

5)
The operational control of the United States is limited to
construction activities;
6)
The agreed locations will be areas of joint use, consistent
with the concept of responsibility based on proportionate use of the

areas and facilities as stated in the EDCA.
These indicators are sufficient to make a reasonable person
conclude that the agreed locations are not, will not and cannot be
converted into foreign military bases or foreign military facilities. The
general features of foreign military bases, extraterritoriality, exclusivity
of use and foreign ownership are not present in these locations. And
so by their design or function or by the standards of ownership, control
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and use, these agreed locations cannot be considered foreign military

bases or foreign military facilities. They are simply Philippine military
bases. We consider the defining characteristic of foreign military base,
the general ability of the foreign force to define within the base the
nature and the scope of the activities they wish to engage in.
This
plenary ability, this general purpose license is found only in the former
Military Bases Agreement of 1947 which gave the United States, the
rights, power, authority within the bases which are necessary for the
establishment, use, operation and defense thereof, or appropriate for
the control thereof, and all the rights, power and authority within the
limits of territorial waters and air space adjacent to or in the vicinity of
the bases which are necessary to provide access to them or
appropriate for their control.
This plenary ability, this general
purpose license is patently and demonstrably absent in the EDCA

because of the permission system in place for every activity that will
be undertaken by the US forces on Philippine soil as already mandated
by the Visiting Forces Agreement. The Philippines has control over
these locations not only because we own them but also because we
can set the parameters for their use and access by the United States
through the permission system that is in place. By this control test,
the agreed locations are decidedly Philippine, not foreign military
bases.
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To conclude, the EDCA is an executive agreement because it

implements the principle of defensive preparation and cooperation
under the MDT and the specific rules of the VFA with respect to the
presence of troops, equipment, supplies, vessels and the aircraft. In
the view of the President, all the necessary licenses for entering into
the EDCA have already been secured.
military bases.
It does not involve foreign
It involves the improvement of Philippine military
bases.
Thank you, Madam Chair, Senators.
We hope that the short presentation has been of some assistance
to the Honorable Committee.
THE CHAIRPERSON. A lot of assistance.
The question is this: The Constitution prohibits foreign military
bases, troops and facilities unless the Senate has concurred. Ngayon
ang EDCA hindi binigay sa amin for concurrence. Bakit, hindi ba siya
base? Hindi ba siya troops, hindi ba siya facilities? Kung hindi man
siya, ano siya?
MR. HILBAY.
Insofar as the EDCA is concerned, Madam Chair, iyon pong

presence ng troops has already been allowed under the VFA. And so
to the extent that the EDCA allows the presence of troops, it is
derivative of the VFA.
In the matter of foreign military bases and
foreign military facilities, Your Honor, Madam Chair, the position of the
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government, and we have given you the various tests that available, is
that, this does not involve the presence of foreign military bases
facilities.
or
This involves the improvement of Philippine military bases
and facilities.
And so we have for ownership, we have control, we
have access.
But we will allow them operational control for
construction activities which is only reasonable, Your Honor, because

they are spending their funds for the purposes of construction of
runways, ports, hangars and barracks.
THE CHAIRPERSON. You proposed several tests to determine
whether the so-called agreed location which is actually euphemism
for foreign military bases or at the very least, foreign facilities.
You
argued that agreed locations are different from a foreign military base
or facilities. But you forgot to apply the test of geography, the most
basic test of all. Saan ba itong mga foreign military bases, troops and
facilities ng America? Nandito ba sa atin
o doon sa kanila? Bakit hindi
nila ilagay doon sa sarili nila, bakit kailangan nasa atin?
With the
globalization of warfare today, they can very well defend themselves

from their own homeland. Why do they have to use ours? Thats the
basic question. Hindi ba iyan patunay na tayo ay kasama lamang sa
tinatawag nilang strategic guidance?
Strategic guidance, its a little
book that tells us what the Americans want to do militarily in the near
future.
Ang nakasabi doon na gusto lang nila na kasali din ang
Pilipinas sa kanilang mga allied states kamukha ng Singapore at

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Australia, na tayoy isang grupo na leader natin ang America para kung
ano man ang ikinagalit ng China tayo muna ang tatamaan, hindi sila.
[laughter]
O pakisagot mo lang. What about geography? What about the
test of geography?
MR. HILBAY.
Thank you, Madam Chair.
Our position, Your Honor, is that these agreed locations are so

called agreed locations, primarily because the Philippines will have to
agree and the United States will have to agree with respect to the
locations of these premises. And these premises will necessarily have
to be Philippine military premises because under the EDCA, it is only
Philippine military premises that can be determined as agreed
locations.
While it is true, Your Honor, that the United States has its
own/cfd
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MR. HILBAY. United States has its own independent interest

in coming over here, the position of the Philippine government is that
there is a convergence of interests here. Of course, the United States
would like to exert its might and project its force within Asia but we
in the Philippines, Your Honor, have our own, you know,
and more parochial
concern which is
modernizing
independent
the Philippine
military forces. And we would like to take advantage of the interest

of the United States so that we can improve our own facilities.
THE CHAIRPERSON. Thank you.
Are there questions from our panel? Senator Marcos.
SEN. MARCOS. Thank you, Madam Chair.
Weve heard a lot
this morning about the improvement of our
capabilities, the improvement
of our
readiness and it has
proposed that that is the main purpose of

improve our
maritime
been
the agreed locations to
security to help in the
organization of our
military exercises together with the United States.

However, in Article 6 of the agreement of EDCA, it speaks mostly
of pre-positioning.
the
And pre-positioning,
forward positioning
of
materiel
I take to mean,
so that
when
is simply
there is a
deployment in that part of the world, that this material did not
come from a distance far away in the United States. I am reminded
of the pre-positioned material that you see in a place like Hawaii
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where there are acres and acres of military equipment just waiting to
be deployed should there be a need.
And furthermore, in Paragraph 3 of Article 4, it reads, The prepositioned materiel of United States force shall be for the exclusive
use of the
United States force
and
full titles of such
equipment,
supplies and material remains with the United States. With that, the
United States
will have control over the access
to and disposition
of such pre-positioned materiel and shall have the unencumbered

right to remove
such pre-positioned
materiel at any time from the
territory of the Philippines. This is implying that these pre-positioned

materiel in the Philippines agreed locations is for war and it is not
to do with training, it is not to do
with
increasing
the Philippine
Armed Forces capability but merely it is using the agreed locations

in the Philippines should there be a need to prosecute a war in our
part of the world which willand the pre-positioning of this materiel
will be clearly for the use only of United States forces, surely that
implies
that this is now a US base.
SolGen or Usec Batino.

MR. BATINO. Thank you, Madam Chair and Your Honor.
We would like to make emphasis on the pertinent phrase in
Paragraph 1 of Article IV that requires the pre-positioning and storing
of defense equipment to go through bilateral
security
mechanisms
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12:54 p.m.
such as the Mutual Defense Board and Security Engagement Board.

This clearly provides that the Philippines consent is needed for the
pre-positioning of these materiel taking into consideration its own
our own national interest.
SEN. MARCOS.
the
My reading of it is that it does not require
Philippine consent
any longer because
in the language,
Philippine consent is actually being given and therefore that consent

need not be given at any time in the future. It is already given by
virtue of this agreement. So, there is no
bilateral consultation in any
way. Dahil ibinigay na natin ang karapatan, Sige, sige, magpasok

kayo kung ano ang gusto ninyo na
mailagay ninyo dito
sa
mga
agreed locations. Mga gamit na hindi naman magagamit ng mga

sundalong Pinoy. So,
papaano hindi naging base
looks to meit sounds a lot

precisely the kind
soil. Kaya nga
to be
iyan?
Parang it
like a base because
this is
of activities that they do on bases on American
napapag-usapan
tungkol nga sa training,
natin
na maraming nababanggit
capability, disaster relief. Okay, lahat
Pero maliwang na maliwanag mayroon silangmay bahagi

agreed locations na para sa Amerikano
yan.
noong
lang at tayo naman ay
pumayag.
MR. BATINO.
Yes, Your Honor.
We think that we need
to
contextualize the language presented under Paragraph 1. The Mutual
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December 1, 2014
Defense
12:54 p.m.
Board and the Security Engagement Board are established
consulting mechanisms that meet regularly year-to-year to discuss

the activities and all other details in connection with these activities.
Thus, this is a regular consulting mechanism between the US and the
Philippines in the planning
of
training activities as
operational details such as venue of the training
well as other
exercise and the
possible materiel to be used for the training exercises.

So, it is our position, Your Honor, that through Paragraph 1, it is
clear that there is still this consenting mechanism that is needed to
be passed before any pre-positioned materiel could be decided by
the two parties
to be stored in the agreed locations.
SEN. MARCOS. Well,
again,
the last
paragraph says, the United States forces
sentence on that
shall notify the AFPwill
not consult, will not seek the agreement but will notify. Again, this
bilateral consultation seems to be absent in that kind of language.
MR. BATINO. Your Honor, the first sentence would pertain to
the identification of the pre-positioned materiel to be stored. Once
the determination has been made, then we still require the US to
notify us in advance of the delivery of this pre-positioned materiel.
Of course, this is needed so that we could coordinate our protocols
with the delivery of these items.
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Also, Your Honor,
we would want
to
12:54 p.m.
also emphasize
a very
important paragraph in Article IV, specifically Paragraph 2 where the

parties
share a recognition of the benefits that such pre-positioning
could have for HADR and for the enhancement of their individual and
collective defense capabilities, which is,
again, in consonance
Article I of
the EDCA which focuses on
preparation
of our individual and collective
with
the development
capacity
for
and
mutual
defense.
We note, Your Honor, your observation under Paragraph 3 and
it is our position that this is a
reasonable provision because these
equipment, materiel stored really still belongs to the US. However,

it will be used for the conduct of training exercises for the benefit
of both the Philippine and US forces. It can be used for HADR in times
of disasters.
SEN. MARCOS.
the pre-positioned
But, Usec, there is nothing here to say that
material
will
only be relief
goods, will only be
water supply for disaster preparedness, will only be for that. If that
were the only thing, that will certainly wouldnt be a problem. But
we are talking about weapons and materiel that are being stored.
But,
anyway, I need not
belabor
the point. I think
I have
made my point that it would seem that, at least, at the very least,
there is a section or part of these agreed locations which will be for
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the sole use of the United States forces which would seem to imply
that they have now established a base in the Philippines.
So, with that, Madam Chair, thank you.
THE CHAIRPERSON. Atty. Harry Roque /plm
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THE CHAIRPERSON.
MR. ROQUE.
1:04 p.m.
Atty. Harry Roque.
Thank you. Good afternoon, Madam Chair. Good
afternoon Senator Marcos and Senator Cayetano.

I will not repeat points previously discussed by Dean Magallona
and the Chairperson as well.
I will, however, focus on three points.
No. 1, that this EDCA cannot be an implementation of the MDT nor can
it be an implementation of the VFA.
Secondly, why for all intents and purposes, the provisions of
EDCA provides for the establishment of military bases. And the third
point I would like to address is whether or not the exchange of
ratification has made EDCA already effective under the Vienna
Convention on the Law of Treaties.
Now, it is our position that EDCA cannot be an implementing
agreement on the Mutual Defense Treaty because, No. 1, it constitutes
a new policy.
No. 2, it has a different option and purpose from the
MDT and it has a different context from the MDT.

Now we say that it is a new policy because it forms part of,
literally, a brand new policy.
And according to the decision of the
Supreme Court in Commissioner versus Eastern Trading, treaties that

formulate a new national policy need the concurrence of the Senate
and those that existing ones dont need the concurrence of Senate.
Why do we say its a new policy?
Well, its a new policy that
makes the Philippines a partner of the United States in its brand new
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defense policy.
1:04 p.m.
Now, under this new strategic guidance which has
been mentioned by the Chair and Dean Magallona, not only is there a
pivot to Asia but they will now emphasize existing alliances and expand
networks of cooperation.
According to former President George Bush, the US must be
ready to strike at a moments notice in any dark corner of the world.
And this new policy was really summarized by a quadrilinear defense
review which says that they must move way from obsolete cold-war
garrison, such as permanent bases to mobile expeditionary operations.
Now, under this new setup, the United States will maintain three
kinds of US military facilities.
They will maintain military structures,
those in Germany, in Guam and in Korea. They will soon be kicked out
of Japan.
Secondly, they will have what they call forward-operating sites.
Now, these are still owned by the US but they are smaller. There are
more space bases that could be expanded when theres a need for it.
They will have pre-positioned equipment and will also host a small
number of troops on a rotational basis.
A third type is one which includes EDCA.
cooperative
security
locations.
Their
facilities
It is called the
owned
by
host
governments to be used by the United States in case of actual US

operations. I emphasize actual US operations. But meanwhile, they
could be visited and inspected by the United States.
They will be
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useful for pre-positioning logistic support or as venues for joint

operations with host militaries.
They could also be expanded into
forward operating stations.

Now, the problem is the Executive by merely restating Article II
of the Mutual Defense Treaty believes that it has become a mere
implementing agreement of the MDT. Of course, this is not in accord
with the rule of interpretation of treaties in the Vienna Convention on
the Law of Treaties. Not only must we interpret treaties in good faith
using their ordinary meaning. We must also do so in their context and
in light of its object and purpose.
Now, clearly, the object of the MDT is specified in Article IV of
that treaty. When one party is attacked, the other would consider that
to be dangerous to its own safety and they will act to meet the
common dangers in accordance with its constitutional processes.
any
response
cannot
be
swift.
It
must
pass
through
So
their
constitutional processes. And in the case of the United States, through

the US Congress for a declaration of war.
Now, Article V in turn defines what the objects of attack that
could trigger the application of a treaty and that includes an attack on
either of their metropolitan territory or on either of their island
territories under its jurisdiction in the Pacific.
Now, obviously, the EDCA cannot be a mere implementing
agreement of MDT, assuming even that MDT is valid despite the
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objections raised by Dean Magallona, because the EDCA is not just for
the purpose of collective security. There is no restriction on what the
Americans can do. And because of this, the Americans can even use
our military bases for the purposes of committing the crime of
aggression.
They could even use our military facilities for rendition
and this is not fiction.
In Arar versus Ashcroft, the Canadian
government awarded damages to a Canadian national who was

mistakenly rendered to Syria and tortured after he was intercepted by
the CIA in JFK in New York. And they could even use it as operation
for flying of drones which already a high court in Peshawar said was
illegal under international law because it violated human rights and
international humanitarian law.
The Human Rights Council only last
week decided to form a body precisely to rule on the legality of these

drones.
Now, the context is also different.
Dean Magallona already
mentioned that the context is the Cold War. And, in fact, the premise
was that an attack on the Philippines was an attack on the US since
the US had the biggest naval and air force bases in the country outside
of continental United States. Of course, today matters have changed
not only is there firm diplomatic relations between the US and China.
The USSR has become a thing of the past.
China has become the
biggest creditor of America, the biggest foreign investor in America.

And SEATO, which was the regional collective organization established
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to complement the MDT, no longer exists.

Now, here are some of the contextual differences between EDCA
and the Mutual Defense Treaty in addition to the fact that they have
different object and purpose.
No. 1, there is no such thing as
rotational presence of troops under the MDT. And the reason for this is
that the presence of troops during those times was pursuant to the
Military Bases Agreement. And thats why the MDT does not talk at all
about the stationing of troops, bases and facilities into the country.
No. 2, well, its very clear that pursuant to the new US policy,
EDCA forms part of an actual defense operations and not just for
preparedness.
Its not just for purposes of developing capacity to
exercise self-collective defense.

No. 2, even in the Military Bases Agreement, we did not give
contractors, such as Blackwater, the status as if they form part of US
forces. They are now considered as part of US forces.
Now, in Iraq theres lots of legal controversies generated by
Blackwater because Blackwater seemed to be invoking the same kind
of immunities that the US government can invoke where there are
complaints that they have violated international humanitarian law.
Now, moreover, the presence of troops, bases and facilities in
the EDCA is really more akin to the military bases agreement which
was rejected in 1991. Their sovereign powers are so expansive thatI
would discuss this in a while to show why we believe that there is
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actual basing.
Now, as far as facilities, of course, there is no pre-positioning of
equipment under the MDT. And, again, highlighting the fact that EDCA
authorizes their use for other than collective security purposes even if
it has no relation to the Philippines, whatsoever.
And this is one
peculiar fact under EDCA. The Americans are allowed to operate their
own telecommunication facilities which under the Constitution is
reserved to Filipinos and must be provided the franchise by Congress
but we have given it to the Americans hook, line and sinker.
Now, why do we say that it is also not an implementation of the
VFA?
Well, very clearly, Madam Chair, Your Honors, this Congress in
Senate Resolution No. 16 which provided its concurrence to the VFA

made it very clear that the presence of the United States troops and
facilities under the VFA should only be for visit and for joint military
exercises.
Obviously, this is not the case with EDCA because the Americans
can use their troops and their pre-positioned equipment for actual US
defense operations. Another difference, of course, is there is no prepositioned equipment under the VFA and there are powers provided
under EDCA which are not found in the VFA. And I quote actually from
the very primer published by the DFA in this regard because other than
visiting and joint military exercises, under EDCA they are allowed to
build temporary accommodation, pre-positioning of equipment and
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materials as well as deploying force and materials.

Now, likewise, this is very important, Your Honor. The VFA rules
on jurisdiction including primary Philippine jurisdiction for non-service
related offenses apply only when the VFA is applicable, when US troops
are here for visit and joint military exercises, when they commit a
crime similar to what Nicole experienced and what Jennifer Laude
experienced, rape and murder.
And the troops are here because of
EDCA, the rules on jurisdiction over the servicemen will not apply.
Instead, it is the general rules/sglr
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MR. ROQUE.
1:14 p.m.
Instead, it is the general rules of customary
international that will apply and that is complete immunity from

domestic jurisdiction.
That is very clear because EDCA goes beyond
visiting and joint military exercises. Now, why do we say also that this
provides for permanent bases?
Although I highlight that what the
Constitution prohibits in Section 25 of Article XVIII is not just

permanent bases, it could include temporary bases because the
language of the Constitution is unqualified.
Troops, bases and
facilities. Here are specific provisions: Number one, the term. It could
be a lifetime which is similar to MDT;
Number two, it is incorrect I
believe to invoke that it is not a base because there is no extraterritoriality. The concept of extra-territoriality has been abandoned.
That was the ruling in the Lotus. Today, we talk only of immunity from
domestic jurisdiction. We no longer consider foreign ships as floating
territories. We no longer consider diplomatic premises as foreign soil
in Philippine territory. They remain Philippine territory but exempt or
immune from domestic jurisdiction. So, it does not matter that there
is no extra-territoriality because what is important now in the
international law is whether or not theyre immune from domestic
jurisdiction and I believe they are.
Number one, under the
paragraphs, you can see that US personnel property equipment shall

be allowed to operate in agreed locations. They shall have access and
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use.
1:14 p.m.
Next, not only access and use, they will also have access to
public land and facilities including those owned by local government

and other land and facilities. They can use the entire Philippines as a
military base for all they want. And of course, although, they say that
there
is
no
extra-territorial
application,
look
at
this
provision.
Philippine authority is required to comply with operational safety and

security requirements for them to have access to agreed locations.
Ibig sabihin po, bagamat nakasabi doon na bawal ang nuclear
weapons, paano natin malalaman kung may nuclear weapons nga, eh,
hindi naman tayo pupuwede pumasok doon sa mga facilities nila unless
we comply with operational safety and security requirements. Kapag
nuclear weapons po iyon, siyempre mayroong Restricted. Do not
enter. So, tapos na po ang usapan. Hindi na natin mabe-verify kung
mayroon nga silang nuclear weapons. And then iyong pre positioning
nga po. It is exclusive use of US forces and full title remains with the
US.
Ang punto po dito, hindi na nila kailangang may US bases kasi
they cannot afford it economically and politically. So, they just want to
use ours but only for their sole benefit.
Ito pa po iyan, they shall
retain title to an equipment. They may construct permanent buildings

which shall be used by US forces until no longer required and the
absurdity of this is while they are here rent-free, if we want these
facilities, we have to pay a price for it. And finally, they have the right
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to use water, electricity, other public utilities and to operate its own
telecommunication systems. And the catchall provision is, we give US
forces authority to exercise all rights and authorities within agreed
locations that are necessary for their operation or control or defense.
Where is the exercise of Philippine jurisdiction when we have given
them blanket operational control or
defense
and not just for
construction purposes?
My last point, Your Honor, is I was shocked that in the Supreme
Court, the position of the Executive was that this agreement was
already in force. I do not think that just because the Executive says it
is in force that, in fact, it is because under the Vienna Convention on
the Law of Treaties, there is only one exception where a state may
invoke its domestic law as a ground for non-performance of a treaty
and that is when the consent is vitiated by reason of a domestic law
requirement that is manifest, number one, and of fundamental
importance. I believe that Section 25 of Article XVIII is lex specialis
because it applies exclusively to military bases, troops and facilities
and that this is because Americans knew this when the Senate
rejected the bases agreement in 1991. And therefore, I think, under
international law, we can rightfully invoke that our consent was not
properly given because the Senate was not asked for its concurrence
to this EDCA.
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1:14 p.m.
Thank you, Madam Chairman.

THE CHAIRPERSON.
Thank you very much for that spirited
presentation.
Unfortunately, were running out of time.
session will begin at 3 oclock.
The Senate plenary
In any event, we had a negotiating
panel for EDCA here. They will be available to take any questions if
necessary and we shall hear possibly not the entire statements but, at
least, the cracks of the statements from the remaining resource
persons against EDCA. So, I will call you in the order which you are
seated: Dr. Roland Simbulan, Secretary General Renato Reyes and
Representative Nery Colmenares.
Dr. Simbulan please.
MR. SIMBULAN.
Relations
Committee
Madam Chair, I respectfully thank the Foreign

for
inviting
us,
the
Center
for
People
Empowerment in Governance or CENPEG to give our views on the

controversial Enhanced Defense Cooperation Agreement or EDCA.
CENPEG is a policy research and policy advocacy think-tank on issues
of governance including Philippine foreign policy.
Im currently the
vice-chair of the board of directors and I have authored several books

on US Military Bases, Philippine-US relations and US military presence
in Asia and the Pacific.
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Madam Chair, I will immediately address the four topics that you
have identified to be discussed in this public hearing on EDCA.
One, does EDCA need to be concurred by the Senate? The EDCA
needs to be concurred by the Senate given the constitutional
requirement that any treaty or international agreement that will allow
foreign troops, foreign military facilities and foreign military bases on
Philippine soil should be submitted to the Senate to be concurred by
two-thirds of its members. This provision is as clear as day despite the
fact that the proponents claim that it merely implements provisions of
the mother treaties such as the 1951 Mutual Defense Treaty and the
1999 Visiting Forces Agreement.
But how can EDCA be a mere
implementing executive agreement when it includes specific new

provisions that rightfully belong to a new treaty?
this trick pass.
We should not let
For this may be used as a precedent for future
controversial executive agreements which in fact are new treaties on

the grounds that they are mere implementing agreements of previous
treaties.
From the text of EDCA as it has been made clear by our
previous resource persons, it is clear that US troops are to be deployed

and US military facilities will be constructed with the assistance of US
defense contractors inside Philippine military camps in any part of our
country. From the provisions of EDCA, even the jurisdiction of national
and international courts will have to be waived in relation to disputes
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arising from the implementation of EDCA.
1:14 p.m.
These are just some
provisions among many others that rightfully belong to a new treaty

that need the concurrence of the Senate.
Number two, is EDCA necessary?
The EDCA enhances the
revival of the Cold War in the region in the context of the United States
Asia pivot.
The Cold War has long ended.
Proponents of EDCA
promote the usual misconception that US forces will come to our

rescue in the worst case scenario should a shooting war over the
Spratlys erupt between China and the Philippines.
There is no
guarantee for such US support in either the MBT, the VFA or the EDCA.
For instance, in 1975, US State Secretary Henry Kissinger, clarified
that the Spratlys are not included nor recognized by the United States
as part of the coverage of the Philippine Metropolitan territory as
defined under the mutual defense treaty.
Gone are the days when
small nations were used as pawns of the big military powers. So, let
us not allow this to happen again to us through EDCA.
Trade and
economic competition under the globalization regime has become the

means for nations, even the big powers, in dealing with each other.
Number three, is EDCA beneficial? EDCA will only enhance/cda
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MR. SIMBULAN. EDCA will only enhance the isolation of the

Philippines from the fast growing regional economic growth centers of
Asia. We will forfeit our national interest if we focus on again allowing
foreign military forces to be stationed on our territory and to use our
territory
again
as
launching
pad
and
springboard
for
US
interventionary wars.
I recall, Madam Chair, that when I visited Vietnams War
Museum in Ho Chi Minh City only last year, a section of that museum
mentions the Philippines as a satellite country of the United States
which not only sent mercenary troops paid by the United States to
fight the Vietnamese people, but the museum mentions, and I quote:
The Philippines allowed US military forces at Clark Air Base and Subic
Naval Base to launch bombing attacks and military blockage against
the
Vietnamese
people
who
heroically resisted and
eventually
defeated US military intervention in their country. Did we then realize

that that situation jeopardized our security as EDCA now jeopardizes it
because of the enemies of the United States all over the world which
will target US military forces including in our country?
Geographically, we are part of the regional growth center with
ASEAN countries: China, Japan and South Korea. EDCA will allow the
unlimited pre-positioning of the US troops facilities and war material in
any part of the Philippines, rent free, at no cost to the United States.
As a consequence, we will be dragged as an accessory to the United
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States international conflicts, its wars of intervention, aggression

against other countries who are not even our enemies. We will be
abdicating from the fruits of this growth center in our region if we play
into the hands of the US-Asia pivot to remilitarize the region instead of
focusing on trade, investments and economic relations.
And finally, to the question: Is EDCA practical? The EDCA
enhances US intervention in the Philippines with the regular presence
of foreign troops all year round as they have been here since 2003,
thus overturning the Senates historic rejection of the US bases treaty
in 1991 and the Senate resolution in 2009 which called for the
abrogation of the VFA, the basis of EDCA, should the US refuse to a
bilateral review of the VFA to amend its onerous provisions.
And if the proponents of EDCA continue to insist that this is just
a mere implementation of previous existing treaties, then by all
means, let us abrogate the roots of these sell-outs, the MDT and the
VFA, which have transformed our country into a de facto forward base
for US interventionary forces of what the renowned American scholar,
Dr. Noam Chomsky, calls the No. 1 terrorist state in the world today.
The
Philippine
Constitution,
we
believe,
incorporated
the
stringent requirement of this kind of agreement. We submitted to the

Senate for concurrence so that our nation will never again compromise
our tenets of sovereignty, peace, and self-determination for ourselves
and our neighbors by hosting foreign military forces such as those of
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the United States which were used actively for aggression and
intervention
against
smaller
states
and
peoples
seeking
self-
determination. Agreements like EDCA are patently one-sided or

onerous and it is a clear-cut case of negotiated subservience. So why
do we agree to them and accept and inflict upon ourselves this kind of
negotiated subservience?
Madam Chair, even the Department of Foreign Affairs, in its note
verbale to the US embassy, No. 060103 dated January 17, 2006, on
the implementation of the EDCAs mother treaty, the VFA, in
connection with the issue of the custody of Daniel Smith, wrote, and I
quote: In addition, while aware of the differences between the
agreement and similar agreements entered into by the United States,
the Philippine government is seriously concerned over the patent
disparity in the treatment of US military personnel in other countries
on the issue of custody in criminal cases.
So, what did we do about this? We inflicted on ourselves a graver
form of subservience, the Enhanced Defense Cooperation Agreement.
Sadista talaga tayo sa ating sarili.
Thank you, Madam Chair, for this honor of inviting us to your
Committee to present our views on this controversial issue that needs
to be addressed from the perspective of Philippine national interest and
Philippine national security.
Thank you and good afternoon.
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THE CHAIRPERSON. And thank you too.

Mr. Renato Reyes.
MR. REYES. Maraming salamat po. Magandang tanghali.
Katulad din po ng mga nabanggit, hindi po maaaring ituring ang
Mutual Defense Treaty bilang framework para sa pag-i-istasyon ng
mga sundalong Amerikano sa ating bansa. Katunayan po, bago pa man
magkaroon ng Mutual Defense Treaty, may mga sundalong Amerikano
nang nakabase sa ating bansa at ito ay sa pamamagitan ng Military
Bases Agreement of 1947. So it predates the Mutual Defense Treaty.
Hindi rin po maaaring gamiting batayan ang VFA tulad rin ng nabanggit
dahil nga po ito ay para lamang sa panandalian, temporary na
pagdalaw ng mga sundalong Amerikano sa ating bayan. Pero sa mga
nagdaang taon, nagawan po nila ng paraan para ikutan iyan dahil nga
tinatawag na ngayon nilang rotational presence. Ibig sabihin, may
papasok sa ating bansa, may lalabas but at any given time, there will
always be American troops in our country. Yet, we cannot use the VFA
because the VFA does not allow the construction of permanent facilities
for US forces.
Doon sa tanong po na, is EDCA necessary? We believe that EDCA
is not necessary for the defense of Philippine sovereignty and the
advancement of our national interest. The US is part of the US
strategic pivot to Asia. Ito pong pivot which was announced in 2011
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plus-two meeting in Washington and there they approved a new

policy. The policy of increased rotational presence. It was only after
the policy of increased rotational presence was approved that
negotiations for EDCA started. The original title of the agreement was
the framework agreement for increased rotational presence and
enhanced
defense cooperation. So doon po malinaw na ang nag-
trigger ng EDCA ay iyong announcement ng US sa kanyang pivot sa

Asya. Ang kanyang pagnanais na protektahan ang kanyang economic
at military interest sa Asia.
At hindi po tayo ipagtatanggol ng Amerika sa ating mga usapin
laban sa Tsina. Wala pong nasasaad sa EDCA kaugnay niyan. Wala ring
nasasaad sa Mutual Defense Treaty at kahit nga po ang Presidente ng
Estados Unidos ay malinaw na nagsabi na wala silang intensyong
makipag-giyera sa Tsina.
Next. Sa usapin po ng is it beneficial? Ito po, marami pong
ipinapangako sa atin ang Philippine government pero hindi po iyan
makakamit. Hindi po tutungo sa modernization ang EDCA, hindi po ito
makakatulong sa AFP modernization. Walang sinasabi sa EDCA kung
paano tayo magiging
moderno sa pamamagitan ng war games,
rotational deployment o iyong storage at pre-positioning ng weapons

and other forms of interaction with US troops. The agreement does not
say how the AFP will acquire extra amount of weapons, ammunitions,
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December 1, 2014
1:24 p.m.
vehicles, vessels and technology in exchange for the use of our

facilities.
Next. Hindi po talaga tayo makikinabang. Mas sila pa ho ang
makikinabang kasi nga po sa pre-positioned material at iyong
pagbabase nila sa ating bansa. Ang kanilang mga kagamitan na
nandidito sa ilalim ng EDCA ay eksklusibo lamang para sa gamit ng
mga Amerikanong sundalo and can be moved out of the country
anytime. All relocatable or movable items owned by the US forces will
be brought back to the US, leaving us with only empty buildings. They
can bring home literally everything including the kitchen sink. So ano
ho ang matitira sa atin? Mga building na walang laman. Iyon po ang
nasasaad sa kasunduan. At kung totoo nga po, kung totoo po na US
military presence/jadc
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December 1, 2014
MR.
REYES.
na
US
military
1:34 p.m.
presence
will
lead
to
modernization, we should now be super power after 44 years of the

bases and 15 years of the VFA. Ano po ang nangyari? Bakit wala po
iyong sinasabing modernization?
Binabanggit po kanina iyong pag-store, iyong paglalagay ng
materiel.
Gusto natin pong banggitin iyong definition ng US
Department of Defense Military Dictionary, what do they mean by

materiel.
It means all items including ships, tanks, self-propelled
weapons, we presume missiles, aircraft, et ceteraand related spares,

repair parts and support equipment excluding real estate, real
property, installations and utilities necessary to equip, operate,
maintain and support military activities without distinction as to its
application for administrative or combat purposes.
So, ipaparada po sa atin dito mga barko, mga tangke, mga
sasakyang pandigma. Kasama po iyon doon sa malawak na definition
ng materiel na puwedeng i-preposition dito sa ating bayan.
Next. Humanitarian assistance and disaster response. Ito raw
iyong maaari nating makuhang benepisyo. Gusto natin pong banggitin
na noong panahon ng Yolanda marami pong mga bansa ang nagbigay
ng humanitarian assistance, disaster response sa atin. Pero Amerika
lang po ang humihingi ng isang military agreement kapalit ng
pagbibigay ng humanitarian assistance at disaster response. Tingin po
natin hindi kinakailangan.
Kung tutulong talaga, tutulong.
Puwede
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December 1, 2014
1:34 p.m.
naman pong gawin iyan ng mga sibilyan na ahensiya without any

military agreement in exchange for the humanitarian assistance.
Next. Doon po sa pagiging practical. Nabanggit na nga po na
unconstitutional, unnecessary and hindi beneficial itong EDCA.
Kaya
hindi rin po maituturing na practical para sa ating mga kababayan,

para sa ating gobyerno. It is grossly disadvantageous. Wala na nga
po tayong malinaw na napapala, libre pa nating ipapagamit ang ating
buong bansa at mga pasilidad.
Pati po iyong tubig at kuryente tax-
free natin iyang ipapagamit sa mga Amerikanong sundalo.
Ang
magbabayad po ng tax sa utilities, sa tubig, sa kuryente at iba pa ay

ang Philippine government, iyong AFP.
pakinabang doon?
So, nasaan talaga iyong
Kumbaga iyong taning ng EDCA maaaring mas
mahaba pa sa 1947 Military Bases Agreement.

years pero itoy na-terminate noong 1991.
Originally, it was 99
Dahil nga po after 10
years, in effect na po itong agreement na ito indefinitely.

Kaya ang amin pong panawagan sa Senado at natutuwa kami na
iginigiit ng Senado ang kanyang poder sa usaping ito. At panahon na
po talaga para panindigan natin iyong pambansang soberanya natin at
pambansang interest at huwag tayong pumayag sa isang hindi
makatarungan at grossly disadvantageous na kasunduan na tayo po ay
talagang dehadong-dehado.
THE CHAIRPERSON. Thank you, Mr. Renato Reyes.
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1:34 p.m.
And finally, Representative Neri Colmenares.

REP. COLMENARES.
Maraming salamat po, Madam Chair.
Good afternoon sa members ng Senate.

I will delve on certain issues na lang po, Madam Chair.
EDCA is an agreement pertaining to the entry of foreign troops
bases or facilities.
The Constitution under Article XVII, Section 25
requires three things.
One, it should be concluded in the form of a
treaty; two, it should be submitted to the Senate for concurrence and

its ratification; and three, that treaty should grant Congress the
discretion and the opportunity to decide whether or not to call for a
referendum and consult the Filipino people to approve or disapprove
the same.
Because of the insistence of the President to consider this as a
mere executive agreement, he, therefore, violated the Constitution and
the requirements of the Constitution. So, in that sense, Madam Chair,
I agree with the various resource speakers who said that, in fact,
indeed, it should not be considered constitutional.
But other than the constitutional requirements, Madam Chair,
EDCA has dark and serious implications on Philippine sovereignty that
requires the President at the very least the courtesy of asking or
consulting the Senate and Congress before he commits the Philippines
to the gross surrender of its sovereignty.
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December 1, 2014
1:34 p.m.
One, Madam Chair, it provides for basing of foreign troops. The

term is pre positioning of foreign troops, pre positioning of war
materiel, but its actually basing.
Whether or not its a base, lets
grant without even agreeing with the executive. Its not a permanent
base.
But the Constitution does not require that it be a permanent
base.
The basing of foreign troops and weapons is compounded by
the provision under Article III, Paragraph 1 of EDCA, which says that
this can be deployed by
have,
in
fact,
the
United
States
at
any
time.
They
the unencumbered right to remove this war material
and deploy its troops. This transforms, Madam Chair, the Philippines
into a launching pad to attack enemies of the United States. And the
United States has a lot of enemies, Madam Chair.
So, now, we will be embroiled in a war not of our own making.
Doesnt this pose a danger to the Filipino people?
We will be
considered legitimate targets of the enemies of the United States

because these troops and these weapons were previously based in the
Philippines before they were deployed in Ukraine or in Syria or
wherever the United States wishes to launch its war. These we believe
EDCA should, at least, grant the Senate the opportunity to discuss the
ramification of this endangerment of Filipino people.
Second, EDCA provides control over the United States despite
the statements of the executive that the control resides with the
95

Caturla
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1:34 p.m.
Philippines. The fact is, the provision in EDCA provides virtual control
on the part of the United States.
For example, Madam Chair, it provides that all rights and
authorities shall reside with the United States in the agreed location
including the taking of the appropriate measures for the defense and
protection of their agreed locations and their personnel.
This means
that the United States have control. And, in fact, they can act if they
feel that the defense of the agreed locations or their personnel is being
threatened, they can take measures, Madam Chair, to meet such a
supposed threat.
Can the Philippines or does the Philippines have to approve these
measures, Madam Chair?
No.
In fact, EDCA provides in Article IV,
Paragraph 1, that the US will coordinate.
But the fact that they are
allowed to take these appropriate measures to defend their agreed

location means that they are the decisive factor here.
Two, they have an impeded access to the agreed locations.
Tingin namin hindi puwedeng mag-checkpoint dito ang Philippine
government.
I-inspect mo ang pumapasok na mga weaponry.
No.
The United States clearly stated in EDCA unimpeded ang access

namin sa agreed locations. In fact, unimpeded iyong access namin in
the deployment unecumbered rights in the deployment.
Ang Pilipinas po ba ang may unimpeded access?
No.
In fact,
impeded ang access ng Pilipinas sa agreed locations because they have

96

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1:34 p.m.
to contend with operational safety and security requirements of the

US. And only the US will say, You cannot visit. You cannot access
the
agreed
locations
because
operational
safety
and
defense
requirements or safety requirements do not allow such access.

Whereas, sila may unimpeded access tayo naman ay mayroon.
May control ba sila sa mga buildings? Klaro po iyan sa Article V,
Paragraph 2.
They control the buildings, they control the facilities.
And they can turn over these buildings and facilities someday,
sometime, somehow when they no longer require it.
Can you imagine, Madam Chair, a contractual obligation where
the condition is practically and absolutely dependent on one party.
Kung kailan ko sasabihing hindi ko na kailangan, at saka niyo lang
makuha ang mga buildings and facilities na iyan.
So, despite the protestation of the solicitor general that we own
it, we control it, practically, the EDCA, Madam Chair, disallows us or
divorces us from any of this control.
And lastly, Madam Chair, it allows for very many onerous
provisions. The Senate must, at least be, or Congress must, at least,
be consulted.
Tama ba ang mamamayang Pilipino nagbabayad ng
mataas na presyo ng kuryente, tubig, lahat ng utilities? The rich and

powerful United States is exempted from paying taxes and charges
and fees for their use of electricitycp
97

REP. COLMENARES.
1:44 p.m.
for their use of electricity, water, and
other water utilities? Tama ba na i-impose natin, bigyan natin sila ng

telecommunication system free of charge ang use of radio.free of
charge ang use of radio spectrum?
Tama ba na pag pumasok ang
Amerikano dito exempted sila from visa requirements? The regulatory

tool of a government to process the entry of foreigners in the country
is lost. Thats why if you ask the Philippine government how many US
troops are here in the Philippines, they wouldnt know because there is
no regulatory tool such as a visa. But the VFA too, on the other hand
says, that the US embassy has the right to deny a Filipino soldier
entering the US. Is that not onerous?
VFA-1, Madam Chair, which
applies to EDCA, pag ang Amerikano ay accused of a crime, the US

automatically gets the custody of the accused upon their request.
Thats a mandatory provision, Madam Chair.
Another onerous
provision. Is it really a request? How can it be a request if the word is

shall? Thats not a request. Thats an order in fact that the US turn
over custody of an American soldier accused of a crime to the United
States upon their request. VFA-2, on the other hand says, if a Filipino
soldier commits a crime in the US, well they will ask the relevant
agencies if they can waive custody in favor of the Philippine
government.
Marami pa pong onerous provisions na-discuss ng iba
kong kasama, but in the
end, this violates the
constitutional
98

requirement of checks and balance.
1:44 p.m.
That is the purpose of this
constitutional provision. There must be checks and balance so that the

executive cannot sell out Philippine sovereignty and independence
without at least consulting with either the Congress or the Filipino
people. And I really hope that the Senate will make it a point to assert
its constitutional prerogative under the Constitution and the mandate
given by the Filipino people.
Maraming salamat po, Madam Chair.
THE CHAIRPERSON. We, in the Foreign Relations Committee,
express profound gratitude for the participation of our distinguished
panel on both sides this afternoon.
We have said at the start of these proceedings that the Supreme
Court has ruled the Senate has no power to compel the President to
submit a Senate or international document or agreement to the Senate
for concurrence, so we cannot possibly order the President to send
over the EDCA to us for our concurrence in the ratification. But what
we can do is we shall express, since after all the Constitution divides
the foreign policy power between the executive and the legislative
branches, we shall issue a sense of the Senate resolution so that we
can summarize the views and the attitudes that you have heard from
today.
Thank you very much.
99

1:44 p.m.
I will now hold my press conference here.
Will you come
forward, please?
[THE HEARING ENDED AT 1:47 P.M.]
/mrjc
100

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Republic of the Philippines

CONGRESS OF THE PHILIPPINES

Monday, December 1, 2014

Committee Room Nos. 2 and 3

Inquiry, in Aid of Legislation, on the

MIRIAM DEFENSOR SANTIAGO

COMMITTEE ON FOREIGN RELATIONS

Hon. Raymund Jose Quilop

- Assistant Secretary, DND

COMMITTEE ON FOREIGN RELATIONS

Ms. Cleofe Caturla

Committee Stenographer, LCSS B

(For complete list, please see attached Attendance Sheet.)

COMMITTEE ON FOREIGN RELATIONS

AT 11:04 A.M., HON. MIRIAM DEFENSOR

COMMITTEE ON FOREIGN RELATIONS

COMMITTEE ON FOREIGN RELATIONS

to inhibit the power of the Senate to conduct inquiries in aid of

agreement shall be valid and effectivehindi lamang valid or

COMMITTEE ON FOREIGN RELATIONS

Baligtarin mo lang. Probably, we can see the world-view of the framers

COMMITTEE ON FOREIGN RELATIONS

MR. DEL ROSARIO.

Good morning, Madam Chair, Senator

Ferdinand Marcos Jr.

COMMITTEE ON FOREIGN RELATIONS

MR. DEL ROSARIO. In the 60 years, the global security

democracies and fastest growing economies in the region. The nature

On two many instances, the need for close

cooperation in humanitarian assistance and disaster relief has been

We have devoted a bigger share of our resources to

strengthen our national security.

Considering our limited resources

and the pressing external challenges, however, assistance from our

The congruence of interest

COMMITTEE ON FOREIGN RELATIONS

underscores the continued relevance of the Mutual Defense Treaty.

remains the foundation of our bilateral security partnership. While we

In addition, as part of modern defense cooperation

activities, there is a strong component for humanitarian assistance and

The EDCA also contains provisions that actually

COMMITTEE ON FOREIGN RELATIONS

which according to the Supreme Court are mandated under existing

enhance interoperability with the defense systems of our security

opportunities for our people in terms of employment and purchase of

The value of this

equipment and assistance was underscored during post-Haiyan relief

And the Agreement entered into force on June 25th

2014 in accordance with Article XII of the Agreement.

current regional security challenges, it is the primary responsibility of

of government approach towards

COMMITTEE ON FOREIGN RELATIONS

strengthening our defense capabilities, we are also leveraging our

In this effort we see the EDCA as an important

instrument that implements our countrys existing national policies

agreement? I know since I studied in law school that the Constitution

But I cannot forwards and backwards find the word

executive agreement in the Constitution. My implication, of course,

I think, Madam Chair, that it is not

mentioned in the Constitution. The executive agreement is not per se

COMMITTEE ON FOREIGN RELATIONS

THE CHAIRPERSON. Is not mentioned. So, if it is mentioned

That is the exact phraseology of our