Philippine presidents, not only Rodrigo Duterte and his defense and military officials, are violating the 1987 Constitution just for the sake of a security alliance.
The charter prohibits any foreign military on Philippine soil unless allowed by a treaty ratified by the Senate.
Only two countries — the United States and Australia — are allowed to train and exercise in the country. The US signed the Mutual Defense Treaty in 1951, a relic of the Cold War arrangement and operationalized in the 1998 Visiting Forces Agreement.
Australia also had a similar agreement more than a decade later, which could be a model for future status-of-forces deals with other countries, including with some Southeast Asian countries and Japan.
Tokyo has been requesting to enter into a visiting forces agreement with Manila as early as during the administration of the late Benigno Simeon Aquino III.
There had been low-level diplomatic and defense department meetings as Japan was, at that time, negotiating a similar deal with Australia. It wanted an agreement similar to what Australia and the Philippines had agreed in 2012.
But efforts to sign the deal had stalled for unknown reasons, especially after President Rodrigo Duterte came to power in 2016.
He could be avoiding China’s ire if the Philippines entered into an agreement with Japan, which will strengthen the web of alliance with the US and Australia.
Last week, the Japanese embassy in Manila announced an air-to-air exercise between its Japan Air Self Defense Force (JASDF) and the Philippine Air Force (PAF) to share Japanese expertise in operating C130 military transport aircraft in disaster areas.
JASDF will demonstrate how relief materials can be air dropped in areas devastated by earthquakes, typhoons and volcanic eruptions. This is very timely as the Philippines enters the monsoon season and there’s a restive volcano south of the capital.
However, it is not clear what is the legal basis for the exercise even if a small number of Japanese troops and only one C-130 Hercules plane will be deployed to Clark for the four-day drill this week.
Without a visiting forces agreement, the defense and military establishments will be violating the constitution and Duterte has allowed it to happen.
The Japanese soldiers taking part in the air-to-air exercise are risking arrest and detention in the country’s steamy, hot, and crowded jail facilities in case they commit crimes outside of the official activities.
How would Tokyo deal with the issue? Washington has prevented an American serviceman to stay even for a night inside a local jail during the investigation, trial and conviction by invoking the VFA.
A minor incident can strain bilateral relations between Tokyo and Manila built on mutual and shared interests and values, like the United States.
The cooperation even runs deeper and wider as both nations share contempt for China, which has claims on both the South China Sea and the Senkaku islands in the East China Sea.
The PAF and the JASDF are embarking on the first air-to-air exercise but the military activity is not the first time both allies are holding drills.
Japan’s Maritime Self Defense Forces (JMSDF) has done at least 17 naval drills with the Philippine Navy and its Japan Self Defense Forces (JSDF) has taken part in the annual US joint and combined “Balikatan” exercises since 2015.
Japan’s coast guard has also been regularly holding maritime law enforcement, anti-terrorism, environmental protection and humanitarian assistance and disaster relief (HADR) drills with the Philippine Coast Guard (PCG)
The PCG’s 10 newest multi-role response vessels (MRRV), the Parola-class law enforcement ships, were built by Japan under a $191-million loan agreement with the Japanese International Cooperation Agency.
Last year, the Philippines signed a $132-million loan with JICA for two 94-meter coast guard vessels capable of carrying a helicopter.
There was no problem in the naval and coast guard exercises because these were done at sea, but the other activities could violate the charter, which prohibits foreign military presence on Philippine soil.
The United States, for instance, had to stop its annual joint and combined “Balikatan” drills in the mid-1990s after the Philippines abrogated the military bases agreement in 1991, terminating the status of forces agreement.
The “Balikatan” returned in 2000 after the Senate ratified the 1998 Visiting Forces Agreement (VFA), a new name for the status of forces agreement.
Even with the 1951 MDT and the 1998 VFA, then-president Gloria Macapagal Arroyo may have violated the 1987 charter when she allowed 1,000 US Special Forces troops to train and advise local troops in fighting the Abu Sayyaf in the southern Philippines.
The agreement with the US allows only conventional warfare drills to test the interoperability of the two allies and rehearse the mutual defense plan under the old Plan Orange.
But the activity in Basilan and Sulu, which both countries had called “Balikatan,” was a stretch because it was illegal to hold non-traditional drills.
In fact, the Arroyo government had to legalize the specialized unconventional warfare training under a new agreement called Security Engagement Board (SEB) in 2005, three years after the two countries began the commando training exercise in the south.
The late former president Benigno Simeon Aquino III may also have violated the constitution in 2011 when it allowed the US to use Clark, the old home of the 13th United States Air Force, as a temporary base for maritime surveillance aircraft.
A US Navy P3C-Orion anti-submarine aircraft has been flying routinely from Clark to maximize its loiter time in the South China Sea without any agreement
It was legalized in 2014 when the Philippines signed an Enhanced Defense Cooperation Agreement (EDCA) with the United States. Later, both countries agreed that the US can be allowed access to five local military bases — four air bases and an army jungle training camp. But Clark was not included in the list of bases agreed upon by the two countries.
Aquino was not the first to allow the US access at local military bases. Arroyo even allowed the US to land and refuel in civilian airports, like Basco, Batanes, as fighters returning to bases in Okinawa from Diego Garcia in the Indian Ocean needed a pit stop. Some of these military planes landed in Clark and Cebu airports.
During the Aquino administration, there were even talks that the US was requesting joint use of several civilian airports, including Laoag airport, for its drones.
The only time the government set aside the constitutional ban on foreign military on the country’s soil was in November 2013 when the most powerful and destructive typhoon struck the country’s belly, killing more than 7,000 people and leaving more than 200,000 households homeless.
More than a dozen countries sent their navies and air forces to help in the massive humanitarian assistance and disaster relief as well as in the reconstruction.
During that humanitarian crisis, the Japan Self Defense Forces sent three vessels and 16 aircraft, of which seven were C130 cargo aircraft for medical assistance and relief operations in the affected areas.
In a massive humanitarian crisis, allowing foreign military troops is justified. But, in normal conditions, it will be hard to find excuses.
Arroyo may have justified her decision to grant the US greater access to local airports and bases because she was working to have then-president George Bush designate the Philippines as a major non-NATO ally, giving a wider opportunity for the country to obtain military assistance.
For his part, Aquino slid closer to the Americans, hoping it could benefit from the two countries’ “iron-clad” relationship in the face of China’s creeping influence and more assertive stance in the South China Sea.
So, what could be Duterte’s reason for allowing Japan to hold training and exercise with the air force in Clark? Could it be the Duterte administration was only trying to return the favor for Japan’s generosity?
Japan has given the country at least five second-hand maritime surveillance planes for free, transferred P1 billion worth of helicopter parts and air frames, and sold an advanced air defense radar.
But do the actions of Philippine presidents, from Arroyo to Duterte, justify the violation of the constitution they have sworn to uphold and protect? Are we ready to throw out Philippine sovereignty in exchange for military cooperation with allies?