Former Senate President Franklin Drilon | PHOTO: Joseph Vidal/Senate PRIB
Former Senate President Franklin Drilon on Thursday said the Philippine government should demand the disclosure of the details of the so-called gentleman’s agreement between former President Rodrigo Duterte and China’s President Xi Jinping.
“[D]isclosure should be the first order of the day,” Drilon told the Inquirer in a phone interview when asked what he could suggest the Marcos administration should do with the supposed “secret” verbal pact, which was disclosed by the former president’s spokesperson Harry Roque.
Roque had revealed that Duterte and Xi had agreed to keep the “status quo” at Ayungin (Second Thomas) Shoal, where the BRP Sierra Madre had been grounded.
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He said that under the agreement, the Philippines would refrain from constructing and repairing installations in the West Philippine Sea.
Part of the deal between Duterte and Xi was that Filipinos were only allowed to deliver food and water supplies, no construction materials, to the troops manning the Sierra Madre.
The Sierra Madre is a decrepit World War II-era ship that was intentionally run aground in 1999 at Ayungin to serve as one of the Philippine military’s outposts in the West Philippine Sea.
The Philippines grounded the ship after the Chinese unilaterally built in 1995 what they said were fishermen’s shelter at the nearby Panganiban (Mischief) Reef. Panganiban has been turned into one of the largest artificial islands by Beijing within the Philippines’ 370-kilometer exclusive economic zone (EEZ).
First mention
According to Drilon, then-freshman Sen. Francis Tolentino first mentioned a verbal agreement concerning the West Philippine Sea in a privileged speech in July 2019.
“The context of the privilege speech was that the verbal agreement is valid and Senator Tolentino was pushing for the enactment of a law which, in effect, would validate the terms of agreement, whatever it is, through a proposed law,” said Drilon.
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In June 2019, Duterte said that he had a verbal fishing agreement with the Chinese leader during their bilateral meeting in October 2016, allowing Chinese fishermen to fish in the Philippines’ EEZ.
According to Malacañang then, the agreement was aimed at avoiding armed confrontation in the territorial dispute with China in the South China Sea, although the coverage and extent of the agreement were unclear and never made public.
“They asked, ‘Will you allow the Chinese to fish?’ I said, ‘Of course.’ That was what we have been discussing before, that’s why we’re talking. And that’s why we’re allowed to fish again,” Duterte said in a speech in Malacañang.
“It was a mutual agreement. Let’s give way to each other. You fish there, I fish here,” he added.
Duterte also said enforcing a ban on Chinese fishing in Philippine waters would be problematic.
Later, Duterte said giving the Chinese access to fish in the Philippines’ EEZ was “constitutional.”
Debate topic
According to Drilon, he was wondering why the privilege speech of Tolentino “was devoted to the validity of a verbal agreement.”
“At that time, we didn’t know anything about the supposed agreement … it’s the first time we heard about it,” he recalled.
In a text message to the Inquirer, Tolentino said “the debate (then) was about fishing rights, and not about BRP Sierra Madre.”
Tolentino added that a “stand-alone oral treaty is not valid.”
“This is different from oral executive agreements, which implement a treaty already ratified by the Senate,” he added.
Drilon maintained that the verbal agreement between the Philippines and China concerning the West Philippine Sea if there was indeed one, would be invalid.
“It is invalid because it is contrary to the arbitration award. Then, it involves the sovereignty of the country over an area, which was affirmed by the arbitral award. It is invalid and contrary to the Constitution, the United Nations Convention on the Law of the Sea, the law of the sea treaty,” he said.
He said he was unaware of any precedent in the Senate where a verbal agreement had been ratified.
“We must first find out what the agreement is all about, I don’t want to jump to a conclusion,” he said when asked if Duterte should be held liable.
But he stressed that the former president should now make public what the agreement was all about.
Conflicting versions
Drilon also noted the “conflicting” versions between the supposed verbal agreement mentioned by Roque and what Tolentino cited in his 2019 speech.
“We do not know how many verbal agreements were there. Do we know? We do not know. We can all speculate,” Drilon said.
In a press briefing earlier this week, Tolentino said that there was no need for a Senate inquiry as sought by Sen. Risa Hontiveros into the supposed “gentleman’s agreement” as there was no document proving its existence.
Tolentino explained that this was not considered as an “agreement” as the Vienna Convention on the Law of the Treaties provides that a treaty should be in written form.
According to the Senate’s July 29, 2019, journal for plenary session No. 4, Tolentino admitted that the basis of his proposition was related to several anecdotal reports on the apparent verbal agreement made in 2016.
“He stated that he was not exactly sure of when the President allowed Chinese fishermen to fish within the West Philippine Sea since the agreement was verbal and no records of the product of that ‘salivatic’ agreement existed,” the Senate journal reported.
Impeachment calls
Duterte’s revelations of his 2016 deal with Xi drew criticisms and calls for impeachment for allowing Chinese fishermen to fish within the country’s EEZ.
The deal, then presidential spokesperson Salvador Panelo told reporters in June 2019, cleared the way for Filipino fishermen to fish anew at Panatag (Scarborough) Shoal, which China seized in 2012.
“The entering of that agreement, more on, like I said, was to avoid armed conflicts, confrontation between the two sides,” Panelo said.
He said, however, that he was uncertain about the coverage and scope of the deal, whether it applied only to Panatag or to the Philippines’ EEZ.
Later, in early July 2019, then Foreign Secretary Teodoro Locsin Jr. disputed Duterte himself, saying that the Philippines was not allowing the Chinese to fish in the country’s EEZ.
Not enforceable
Locsin said that Duterte may have said there was an agreement because “he was given the impression” that there was a “surplus” of fish in Philippine waters that the country could “share” with foreign fishermen.
He said that the verbal agreement with China was not enforceable “because it’s verbal.”
“The question is, is it policy? It’s not policy. He may have been led to believe we had a surplus he may have said sure, that’s fine,” he said.
In May 2021, Roque also denied that there was a verbal fishing agreement between Duterte and Xi.
“There is no truth to the speculation of a purported ‘verbal fishing agreement’ between President Rodrigo Roa Duterte and President Xi Jinping, nor that Chinese vessels were encouraged to stay in the West Philippine Sea despite the diplomatic protests and strongly worded statements of Philippine government officials,” Roque said in a statement then.
“This is without basis and is quite simply, conjecture,” he added. —WITH A REPORT FROM INQUIRER RESEARCH