Speech Regarding the VFA
Mr. Chairman, Ladies and Gentlemen of the Senate.
Allow me to convey to you the appreciation of the Philippine Constitution Association
for your invitation to it to be in this joint hearing of the Committee on National
Defense and Security and the Committee on Foreign affairs. Let me, therefore,
make it of record that I am appearing before you this morning in response to
that invitation in my capacity as the President of the Association. Let me further
state that the position I am about to present is not only my own in a personal
way but also that of my organization.
Now let me preface my remarks by saying that:
One, I fully support the campaign against terrorism anywhere
in the world. In fact, if you will recall, I filed an Anti-Terrorism Bill when
I was still senator. It is now pending in the Senate for consideration, after
it was refilled by His Honor, Senator Panfilo Lacson.
Two, I fully support the decision and action of our government
and security establishment to destroy and eradicate the Abu Sayyaf menace.
Three, I fully support the existing security cooperation between
our country and the United States. As you know, I voted in 1999 in favor of
the ratification of the Visiting Forces Agreement between our Government and
the American Government, although I voted 1991 against the extension of the
American Military basing rights in our country.
Four, as a former administrator of the security concerns our
country for almost seventeen years, I appreciate the continuing assistance and
goodwill of the United States towards the Philippines.
And five, I have absolute confidence in the ability and capability
of our security forces to eliminate and finish our internal security concerns,
If they are fully supported materially and politically.
Having said that, allow me now to address the matter before
1. As I see it, the issue before us this morning revolves around
the real nature of the visit of the 660 American soldiers to the country. This
American military contingent, according to the media, is composed of 160 combat
troops and 500-support group.
2. According to the government, these American soldiers are
here to participate in a military exercise under the Balikatan program in accordance
with the Mutual Defense Treaty and the Visiting Forces Agreement.
3. However, according to U.S. Senator Sam Brownback of Kansas,
a member of the U.S. Senate Foreign Relations Committee,"… The mission
of the U.S. forces was to subdue the Abu Sayyaf and win the safe release of
the Burnhams" and " the Abu Sayyaf group is the target." The
Burnhams (Martin and Grace) are from Kansas. They are the constituents of Senator
Brownback. (The Philippine Star, 18 January 2002)
Senator Brownback also said: "The Philippine military
is not adequately trained or equipped to conduct an aggressive war on the terrorist
group, Abu Sayyaf. In some cases, the Abu Sayyaf are better equipped than the
Philippine military." (The Philippine Star, 18 January 2002)
U.S. Defense Secretary Donald Rumsfeld agreed with what Senator
Brownback said. Let me quote what Secretary Rumsfeld said: "Certainly,
when there's a situation where American hostages are held, that adds dimension
to our interest." (The Philippine Star, 18 January 2002)
National Security Adviser, Roilo Golez, repeatedly said in
print and broadcast media that the American soldiers are in the country for
an "on the job training."
An "on the job training" for soldiers in a combat
area, like Basilan, is, to me, to actually engage in enemy battle. And the enemy
to be engaged in battle for this " on the job training" is the Abu
President Gloria Macapagal Arroyo said in Batangas City, when
she attended the launching of a P3.7 billion international port project there,
that: "We might finally crush the Abu Sayyaf (during the exercise). I am
willing to weather the criticism because we'll succeed in the end." She
"stressed (that) the exercises are within the law and reminded critics
that the goal of the war games is to `help us get rid of the brutal terrorist
kidnappers and to allow all of us to live in peace.` " (The Philippine
Star, 18 January 2002)
Finally, she said, " `Secondly, the American soldiers
will not be in front but behind our soldiers. They will just be watching our
soldiers`…" (the Philippine Star, 18 January 2002)
4. With these unequivocal statements of the responsible political
leaders here and in America , I entertain no doubt whatsoever that, indeed,
the American soldiers are in the country for combat assignment. Their real mission
and military objective is to help the government get rid of the Abu Sayyaf group
and, borrowing the words of U.S. Senator Sam Brownback, "to win the safe
release of the Burnhams."
In addition, with statements like that of the high officials
of the country, I also entertain no doubt that Malacanang is well aware of the
real mission and objective of the American troops who are now in the country.
Of course, Malacanang and its officialdom do not wish to tell
the people the truth for obvious and expedient reason. Malacanang, I suspect,
fully realizes the explosive political nature of this military undertaking.
And so, as a grand deception had to be contrived to hide the
people the real reason why American soldiers are entering the country at this
A "royal lie" had to be concocted. The American soldiers
are simply in the country to participate in a military exercise. This was the
official line adopted to disguise the truth. The entry and purpose of the American
troops had to appear in the guise of one falling under the Mutual Defense Treaty
and the Visiting Forces Agreement to make it palatable and acceptable to the
5. The entry of the American Servicemen in the country for
the purpose mentioned by Senator Sam Brownback violates, in my opinion, the
The Constitution commands that "…foreign military
bases, troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate…"
The only existing treaty today dealing with the entry and treatment
of foreign troops in the country is the Visiting Forces Agreement.
6. The Visiting Forces Agreement was concluded with the United
States after the removal of her military bases, facilities and troops from the
Philippines following the termination of the treaty on American Military Bases
in the Philippines.
This was to enable American troops to enter the country again
so that they can participate in military exercises under the auspices of the
Mutual Defense Treaty. It also provided the legal framework under which American
soldiers will be treated while they remain in the country.
The military exercises contemplated by the Visiting Forces
Agreement are those pursuant to and accordance with the National Defense Plan
of the Philippines (Defense Plan Orange, if I remember correctly). The national
Defense Plan was previously approved and adopted by the Mutual Defense Board,
which is jointly chaired by the Chief of Staff of the Armed Forces of the Philippines
and the Commander in the Pacific of the United States Armed Forces, based in
Hawaii. The National Defense Plan is directed against potential foreign aggressors.
The military exercises under the National Defense Plan are
never designed to deal with internal aggression directed against the Government.
These military exercises are directed external aggression coming from a foreign
The military exercises for which the Visiting Forces Agreement
was concluded are those directed against foreign enemies that will imperil the
independence, sovereignty, and territorial integrity of the Philippines. They
are not meant to deal with internal disorders that endanger merely the authority
of the Government. This was what the Senate understood when it ratified the
Visiting Forces Agreement. Senate Resolution No. 18 which ratified the Visiting
Forces Agreement explicitly stated that:
"The VFA shall serve as the legal mechanism to promote
defense cooperation between the two countries, enhancing the preparedness of
the Armed Forces of the Philippines against external threats; and enabling the
Philippines to bolster the stability of the pacific area in a shared effort
with its neighbor states." (Underlining supplied)
7. The Abu Sayyaf problem is a mere police matter. No amount
of the semantic sophistry will bring the Abu Sayyaf problem within the scope
of the Mutual Defense Treaty.
The Abu Sayyaf members are not Foreign invaders. They are local
rebels and criminal elements. Even if they were foreign invaders, they would
not imperil the independence, sovereignty, and territorial integrity of the
Republic of the Philippines.
Granting that they are linked with or they form part of the
Al Qaida network, still there is no basis, in my opinion, from the viewpoint
of domestic law and international law, to regard Abu Sayyaf group as a foreign
military power under Mutual Defense Treaty.
The members of the Abu Sayyaf are Filipinos. They are citizens
of the Philippines. They are "bandits," according to the government
and the media. They have committed the crimes of rebellion, kidnapping for ransom,
illegal possession of firearms and explosives, murders, rapes, brigandage, arson,
extortion and the like. They are chargeable under our criminal laws and subject
to trial before our civil courts.
How can the government then justify the use of American troops
against them? Their crimes are all purely police matters. I think this will
be the first instance in history that the foreign troops will be used to enforce
the criminal laws of a country. To me this is one for the birds!
Students of law are familiar with the rule of international
law that one state cannot be called upon to enforce the criminal law of another
state. This rule is universally known in the American legal system.
Why then does the American Government, with all the brilliant
legal minds at its beck and call, allow its servicemen to serve as policemen
in our country? Why did it consent to send its military troops to enforce our
criminal laws against our nationals, in our own territory? To fulfill her obligation
under the Mutual Defense Treaty? I think not. To make her servicemen learn the
art of guerilla warfare? I doubt it The United States have more than enough
experience in guerilla warfare than any other nation in this planet earth.
8. Is it because the Abu Sayyaf members are a bunch of brutish,
demonic, and cold-blooded terrorists? May be. But, we have no law that makes
terrorism a crime and a terrorist a criminal. It is axiomatic in criminal law
that there can be no crime without a law. As the Latin maxim says: Nulum crimen
And so, we cannot deal with the Abu Sayyaf members as terrorists,
no matter how much we want to. We must deal with them under our criminal laws
only as rebels, kidnappers, murderers, rapists, brigands, arsonists, extortionists,
and illegal possessors of firearms and explosives.
Of course, they can be killed as terrorists. But they cannot
be arrested for terrorism. We have not adopted a law that makes terrorism a
separate crime, like the crime of plunder.
We cannot declare war, in a formal sense, against the Abu Sayyaf
group. They have not risen to a level of foreign military power within the intent
of the Mutual Defense Treaty.
Even if they have, Gloria Macapagal Arroyo has no authority,
as President, to formally declare war against the Abu Sayyaf group or against
terrorism, for that matter. And this, in spite her being the "chief architect
of the nations foreign policy." She can only call out the Armed Forces
of the Philippines "to prevent or suppress" the "lawless violence"
of the Abu Sayyaf or any terrorist group operating in the country. (Section
18 of Article VII of the Constitution)
She cannot enlist, without violating the constitution, the
assistance of the foreign troops for that purpose, no matter how imperative
the situation may be. And this is true even though, as head of State, she is
" sole organ and authority in the external affairs of the country."
Only "the Congress, by a vote of two-thirds of both Houses
on joint session assembled, voting separately, shall have the sole power to
declare the existence of a state of war." [Section 23(1) of Article VI
of the Constitution, underlining supplied] and only against an external attack
that imperils the independence, sovereignty, and territorial integrity of the
Until now, I am not aware of any congressional action declaring
"the existence of a state of war" against the Abu Sayyaf group or
against terrorism. In fact, Congress has not appropriated any sum of money to
support any such so-called "war" against the Abu Sayyaf or against
And so, strictly speaking it is not correct to say that we
are legally at war against terrorism; we may, however, loosely say that we are
at "war" against the Abu Sayyaf.
As combatants, it is doubtful whether the Abu Sayyaf are subject
to the laws of war. They have no belligerent standing under international law.
They are nothing but common criminals. They are bandits and marauders.
But, have we not adopted "the generally accepted principles
of international law as a part of the law of the land" under Section 2
of Article II of the Constitution?
Yes, we did. But I am not aware, and I think no one in this
room is aware, of any generally accepted principle of international law that
made terrorism a crime. And so , this is the legal conundrum we face.
9. The government cites the United Nations' resolution against
international terrorism as and added reason to justify the employment of American
troops in the war against Abu Sayyaf.
Admittedly, there is such a United Nations' resolution. However,
it is a debatable question whether the United Nations had specifically the Abu
Sayyaf in mind when it passed that resolution.
As far as I know, it was the United States alone that characterized
and listed the Abu Sayyaf, among others in the Philippines, as a terrorist organization.
The question then is: Would the characterization and listing of an organization
as a terrorist group by the United States be binding on the United Nations and
the Philippines, as a member state? In other words, does the unilateral decision
and action of the United States bind the United Nations, at least in this respect?
I think not.
If the unilateral decision and action of the United Sates do
not bind the United nations, how can we then use the united Nations' resolution
to justify the involvement of American troops in our war against the Abu Sayyaf?
Furthermore, if we accept the unilateral characterization and
listing of the United States regarding a particular terrorist organization,
will this not effect indicate that we are adopting a foreign policy of the United
States as our own? And would this not violate the mandate under section 7 of
Article of the Constitution that we "shall pursue an independent foreign
Assuming that the United Nations' resolution specifically included
the Abu Sayyaf as a terrorist organization, how far and to what extent do we
subordinate ourselves to that United Nations resolution without violating the
constitutional injunction that we "shall pursue an independent foreign
These are questions that must be answered by our national leaders.
As much as possible we must forestall any tendency to violate our constitution
or to degrade our sovereignty and independence.
(Statement of Hon. Juan Ponce Enrile before the Joint hearing of the Committee
on Foreign Affairs and the Committee on National Defense and Security, both
of the Senate, 24 January 2002.)