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 us.

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 Sayyaf.

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 time.

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 general public.

5. The entry of the American Servicemen in the country for the purpose mentioned by Senator Sam Brownback violates, in my opinion, the Constitution.

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 military power.

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 sine lege

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 Philippines.

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 terrorism.

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 policy"?

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 policy"?

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.)