POSTSCRIPT / December 19, 2006 / Tuesday


Philippine STAR Columnist

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US failure to ratify VFA may be fatal?

KUDOS: Speaker Jose de Venecia and his cohorts in the House of Representatives should not be cast aside and forgotten just like that after their failed attempt to convene a unicameral Constituent Assembly for Charter change.

In the same way that boxing champion Manny Pacquiao was lionized for uniting the nation when he knocked out the Mexican challenger, De Venecia et al. should be recognized for unifying this divided nation against a self-serving Con-Ass.

For one rare moment last Dec. 5, the House majority had a watchful nation cursing (them) together. Having achieved that singular feat, the ex-future Prime Minster from Pangasinan may now retire from politics.

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NOT JURISDICTION: Much of the confusion over the question of where to detain the US Marine convicted of raping a Filipina in Subic last year can be cleared if we distinguish between jurisdiction and custody.

There is no question that the crime of rape, which was committed by an off-duty US serviceman on Philippine soil against a Philippine citizen in violation of Philippine laws, should be tried — as it is being tried — by a Philippine court.

That point is settled. By submitting the erring soldier to the jurisdiction of the Makati City Regional Trial Court, the US has recognized Philippine jurisdiction.

What is now being debated is custody or, in plain language, where to detain the rapist.

Before his conviction (when he was still presumed innocent), he was kept in a military facility at the US embassy. Upon his conviction, however, he was sent by the trial judge to the Makati City jail, an action now being questioned by the US government.

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GOLDEN MEAN: Aside from clearing the confusion, this distinction may assure the majority of Filipinos that returning the soldier to the US embassy while his appeal is pending is not as abhorrent or as insulting to Philippine sovereignty as it may seem to some.

Philippine jurisdiction has been upheld. It continues to be respected by the US government — not out of American magnanimity but in compliance with the RP-US Visiting Forces Agreement.

To now maintain the status quo before the conviction — wherein the Philippines retains jurisdiction but the US keeps custody of its erring serviceman — while the case has not been decided with finality may be the golden mean.

By “golden mean” I do not mean that such an arrangement splitting jurisdiction and custody is a compromise or mutual accommodation. It is not. It just seems from my layman’s reading of the VFA that that is what the bilateral agreement provides.

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UNCONSTITUTIONAL?: On the constitutionality and enforceability of the VFA, there is the interesting point of its not having been ratified as a treaty by the US.

As early as January 2001, I pointed out in Postscript this imbalance in the two nation’s treatment and appreciation of the VFA. While our Senate ratified it, there was no US Senate consent or concurrence.

Article II, Section 2, of the US Constitution provides that the US president “shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators concur.”

Is the VFA then a mere executive agreement, which is a notch lower than a treaty?

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NO REFERENDUM: As for our Constitution, Section 25 of Article XVIII (Transitory Provisions) provides: “…(F)oreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when 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 party.” (underscoring mine).

One view is that the VFA is only an executive agreement and not a treaty as contemplated under Section 25. Aside from the White House’s failure to submit it to the US Senate for concurrence, the VFA was not ratified in a Philippine referendum as conditionally required by Section 25.

Our Senate did not require a referendum, so that is out. But will the VFA’s non-ratification by the US Senate render it unconstitutional or unenforceable from the Philippine point of view?

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S.C. RULING BIDED: But the VFA, which is the law or contract between our two countries, is not necessarily what we think it is. It is what the Supreme Court, where questions of law eventually go for resolution, says it is.

We assume that the petition of the convicted Marine before the Court of Appeals will eventually reach the Supreme Court. In addition, I understand there is a pending question before the tribunal on the constitutionality of the VFA.

As we all know, such legal questions take time to resolve in our slow-mo justice system.

While the case crawls through the judicial labyrinth, where will the rapist be detained? That takes us back to the question of custody.

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CHEAPER DRUGS: Sen. Mar Roxas, a principal author of Senate Bill 2263 that seeks to assure Filipinos of cheaper quality medicines, welcomes its certification as urgent by President Gloria Arroyo last Dec. 4.

The measure will “amend the laws on patents, trade names, and trademarks to lower prices and increase access to and supply of quality drugs or medicines.”

Many life-saving drugs are priced beyond the reach of ordinary Filipinos. Roxas said the bill’s passage, which will be expedited by the President’s certification, “will be a meaningful yuletide offering to our people.”

“My wish is for us to pass the law before the 13 th Congress adjourns,” he said. The bill is now the subject of floor debates in the Senate.

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CLARIFICATION: Greenpeace, an environmentalist group, says that it has been helping calamity victims in Bicol. It was reacting to a Postscript asking where it has been after a typhoon triggered mudslides and other destruction in the area.

Its email said in part: “While it’s not a secret that we contribute aid to victims of environmental tragedies such as the recent typhoons, this is not information that we publicly advertise.

“Greenpeace has been involved in relief efforts for ‘Reming’ victims. The organization contributed cash and food items which were sent the National Secretariat for Social Action through the Ecowaste Coalition for distribution through the Church’s Social Action Centers in Bicol and Marinduque.

“As individuals, our staff, volunteers, and members here and abroad have also donated food items, clothes, and cash. More donations in cash and in kind continue to be sent in. Like other groups and individuals, we do what we can to help based on our capacities.”

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(First published in the Philippine STAR of December 19, 2006)

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