POSTSCRIPT / January 28, 1999 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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NDF wants to talk? Let them come to RP

PRESIDENT Estrada hit it right when he said that henceforth peace negotiations with the leaders of the rebel National Democratic Front would be held in the country. We hope he will stick to this significant decision.

It is dismaying to see government officials flying to foreign capitals to meet rebel leaders like they were potentates of foreign powers. These long-discredited rebels with dwindling following in the home front have long treated government negotiators like errand boys.

Flying to Europe or some foreign capital might have provided travel opportunities for our negotiators, but allowing the rebels to choose the venue had dealt a big blow to our national pride and sovereignty. Not to mention the expenses involved.

We’re all Filipinos, Mr. Estrada pointed out, so why can’t we sit down and talk in the Philippines?

Right! If foreign-based rebel leaders still want to talk, let them leave their luxurious exile and come here.

* * *

BETWEEN Malacañang and Congress, the controversial Visiting Forces Agreement with the United States is virtually a done deal. The concluding battle is likely to be fought in the third branch of government, the Supreme Court.

Malacañang does not consider the VFA a treaty, but an executive agreement. There is no substantial difference between the two as they have the same binding effect.

Under the Constitution, a treaty requires ratification by two-thirds vote of the 24-member Senate. But an agreement does not require ratification or concurrence.

Considering the emotional debate surrounding it, however, the Executive Department has deemed it wise to submit the VFA for Senate concurrence. At this point, Malacañang appears to have mustered the necessary minimum of 16 votes.

* * *

WITH the fight in the Senate virtually won, the campaign has been stepped up for acceptance among the larger public.

All that noise and fury over security problems, highlighted by the high-profile convening of the National Security Council and the release of updates on the Chinese buildup on Mischief Reef, is part of the campaign to stampede the people into agreeing to the presence of US forces under the VFA.

The public is not part of the formal ratification process unless Congress requires a referendum (which is unlikely). But political decisions, such as Senate ratification, must be backed by popular sentiment. Hence the propaganda on security concerns.

Also, it has been demonstrated, quite dramatically in the Echegaray rape case, that public opinion is pivotal in the decision-making process even in the cloistered Supreme Court where the VFA is likely to be tossed for final judgment.

* * *

OPPONENTS point to Section 25 of Article XVIII (Transitory Provisions) of the Constitution which provides that after the expiration of the RP-US bases pact in 1991, “…foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”

Since the VFA involves allowing the entry of foreign (American) troops, opponents maintain that the contract must be (1) a treaty ratified by the Senate, (2) approved in a referendum if required by Congress, (3) and also recognized by the US as a treaty.

Washington has said earlier on that it does not recognize the VFA as a treaty, but an executive agreement. It would now be problematical for the Philippine government to consider it a treaty with gaining US Senate concurrence.

* * *

THERE is no substantial difference between a treaty and an agreement as far as legal binding commitments are concerned. But one advantage of a treaty is that if it requires congressional action to enforce it, its having been ratified earlier may estop the Senate from objecting to an enabling measure.

Ceremonially, an executive agreement may be regarded by laymen as “lower” in category as it is usually signed only by a representative of the President (usually a Cabinet secretary). Adding to its downgrading in the public mind is the absence of a requirement for ratification.

* * *

BY its name alone, the VFA is an agreement. So why do some quarters insist that it is a treaty?

Some quarters argue that the Constitution requires that any agreement involving the entry of foreign troops must be in the form of a treaty, which requires Senate concurrence and the recognition by the other country as a treaty.

Initially, the Department of Justice held that since the VFA impinges on constitutional provisions and alters local laws on, for instance, criminal jurisdiction, it must be processed and approved as a treaty.

At the Department of Foreign Affairs, however, the position taken was that the VFA was not a treaty and that the constitutional provision being cited did not apply.

The foreign office added that when the Constitution said in Section 2, Article II (Declaration of Principles) that “The Philippines… adopts the generally accepted principles of international law as part of the law of the land…” we vowed to abide by our treaty commitments even to the extent of amending local laws.

The DOJ position was set aside when President Estrada took a strong pro-VFA stance that surprised those who remembered him to have voted against the US bases in 1991. Everyone in the Executive branch, including the DOJ, has adjusted to this presidential position.

* * *

ASSISTANT Secretary for Legal Affairs Franklin Ebdalin of the DFA says that Section 25 of Article XVIII cited by the opposition does not apply to the VFA. He said a reading of the minutes of the Constitutional Commission that wrote it confirms this.

He said that the section referred to foreign troops and facilities in the context of military bases. Since the VFA will not establish foreign bases with their complement of troops and facilities, the agreement must not be treated as a treaty.

The VFA, Ebdalin stressed, is not about allowing US troops into the country (they have been allowed already to come and go freely), but about providing guidelines for US forces arriving mainly for joint RP-US military exercises.

The mother treaty governing the entry of US forces is the Mutual Defense Treaty of 1951 which has been duly ratified and is still in force despite the expiry of the separate bases agreement. The VFA will merely define the status of visiting forces under the MDT, Ebdalin said.

* * *

RESIDENTS of Metro Manila who are bombarded daily with nagbabagang balita about rape, murder and such gruesome crimes must feel jittery.

But if statistics mean anything, it seems that Metro Manila is a relatively safe place. Data released by the Philippine National Police in time for its eighth anniversary tomorrow show that the topnotchers in the murder and rape categories are Region 4 (Southern Tagalog) and Region 6 (Western Visayas). Metro Manila comes in fifth for murder and fourth for rape.

With its teeming population (10+ million), however, Metro Manila tops all the regions in overall crime volume, with the Muslim autonomous region committing the lowest (less than one percent) number of crimes.

Believe it or not, statistics had it that, compared to the previous year, the crime nationwide actually went down by .4 percent. With 70,087 crimes in a 70+-million population, the average monthly crime rate in 1988 was 8.17 per 100,000 population.

* * *

BUT there are certain crimes that the police, however efficient, cannot prevent. These include personal crimes as well as crimes of passion and those committed by hired criminals.

The test of the police is not so much in their being able to prevent crimes (mission impossible) as in their solving them with dispatch.

On this, the PNP appears on top of the situation. For 1998, its crime solution efficiency is 91.27 percent. On the index crimes of murder, homicide, physical injuries, rape, robbery and theft, the solution efficiency is 86.39 percent.

Supt. Napoleon M. delos Santos Jr., PNP PIO chief, clarifies however that “solution” does not mean conviction, another stage beyond the realm of the police. Solution here means that the offenders were identified and charged in court.

In the hurly-burly jungle of our justice system, conviction is a very elusive quarry.

* * *

(First published in the Philippine STAR of January 28, 1999)

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