February 1, 2002, BusinessWorld, Can gov't survive legal impediment to war games?, by Arnold S. Tenorio,

February 1, 2002, BusinessWorld, Can gov't survive legal impediment to war games?, by Arnold S. Tenorio, 

The deployment of United States troops in Mindanao has stirred up a hornet's nest, as Leftist groups stage rallies from the capital in Manila all the 
way to Zamboanga City (Western Mindanao), where American soldiers have begun massing to participate in what the Philippine government claims is merely another military training exercise under the ambit of the Visiting Forces Agreement (VFA). 

Ratified by the Senate in 1999, and declared as constitutional by the Supreme Court a year later, the VFA provides for the conduct of joint military training exercises by the Armed Forces of the Philippines (AFP) and the US military. But as Balikatan 02-01 began yesterday, those opposed to US troop deployment in Mindanao have raised legal issues on the exercise. A few have even threatened filing impeachment raps against President Gloria Macapagal-Arroyo for allegedly violating the Constitution. 

With Balikatan 02-01 causing such a stir, the one-year-old Macapagal- Arroyo administration is again faced with another round of political instability. But would the legal challenges have anything to stand on this time around, and would Balikatan 02-01, for that matter, have similar support? 

"We are told by Defense Secretary Angelo Reyes that it is the VFA that applies to this particular deployment. But Senate Resolution 18, under which the VFA was ratified in May 1999, was for the purpose of enhancing 'the preparedness of the AFP against external threats,'" constitutional law expert and former Senate president Jovito Salonga told BusinessWorld in an interview. 

Quoting stipulations made by pro-VFA senators during official debates in the course of ratifying the agreement, Mr. Salonga added, "(The agreement) contemplates, one, a joint training exercise for a limited period (of) only a few days (to) not more than a month; two, involving a small number of troops; and three, (done) outside a combat area." In contrast, Balikatan 02-01 is believed to last for about six months, according to US officials quoted in international news reports. Also, the military exercise would engage the services of about 600 American soldiers in Basilan (Western Mindanao), considered the lair of the Abu Sayyaf Group, the bandit group that has been holding hostage two US nationals and a Filipina nurse for more than six months now. 

MUTUAL DEFENSE TREATY 

Indeed, the VFA was designed to guide implementation of the Mutual Defense Treaty of 1951 (MDT), an agreement that remains in force in spite of the abrogation of the military bases agreement in 1991. Under the MDT, both the Philippines and the US resolved to "strengthen their present efforts for collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific Area." 

But the government cannot use even the MDT to support the present US troop deployment in Mindanao, Mr. Salonga said. The 1951 agreement, as mentioned in the prefatory note, is premised on both parties -- the Philippines and the US -- "defending themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific Area." 

However, the Abu Sayyaf Group could hardly qualify as an external armed aggressor. "The barbaric kidnapping of the Burnham missionaries -- Gracia and Martin from Kansas, and of Filipina nurse Deborah Yap by the Abu Sayyaf mercenaries -- all of whom are from Muslim Mindanao and therefore classified as Filipino citizens under our Constitution -- is an act of domestic terrorism we should condemn and defeat decisively," Mr. Salonga said. 

Far from being an "external armed attack" as provided for in the MDT, kidnap-for-ransom is a crime punishable under the Revised Penal Code, and so merits mere police action. The government, therefore, would be at pains looking for a legal rationale to back up the conduct of the upcoming military exercise, according to Mr. Salonga. If, as international news reports have it, the American soldiers would be accompanying their Filipino counterparts during combat patrols, and would be allowed to fire their weapons when fired upon, then government, in allowing such an arrangement, would be violating its own constitution, the former senator said. "(E)xcept under a treaty duly ratified by the Senate Article 18, Section 25 (of the Constitution) says, 'After the expiration in 1991 of the Military Bases Agreement foreign military bases, troops, or facilities shall not be allowed in the Philippines,'" said Mr. Salonga, who led the Senate in 1991 in junking a proposal extending the stay of US bases in the country. "I don't know how (the government) can find any agreement that will be compatible with the Constitution. The provision of the Constitution prevails over any legislation.". 

MUTUAL LOGISTICS AND SERVICE AGREEMENT 

Even if the administration secures a so-called Mutual Logistics and Service Agreement, Mr. Salonga stressed the Constitution would prevail over such an arrangement. "In my view, it is not legal because over and above all those (proposals) is Article 18, Section 25 of the Constitution," he said. Unfortunately, even the Senate, whose concurrence is crucial for such an agreement, appears to be in the dark as regards the basis for the upcoming military exercise. The Lower House, for its part, has begun inquiries on the matter. 

Would this mean that impeachment raps against the President could be forthcoming? Well not so, according to the same law experts interviewed by BusinessWorld. "(Groups opposed to Balikatan 02-01) can file an impeachment case (against Pres. Macapagal-Arroyo), but whether it will prosper is another matter," Mr. Salonga said. 

The constitutional violation, if any, would have to be "manifest," Raul Pangalangan, dean of the University of the Philippines College of Law, said. "(The violation) should rise to the level of an impeachable offense, and the violation would have to be determined by the Supreme Court," he said. "If there's a violation, that's not enough. It would have to be manifest. But considering that there's still debate about the (constitutionality of the Balikatan 02-01), it's not manifest."