POSTSCRIPT / December 21, 2006 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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SC has upheld VFA as valid. Is it, really?

NON-RATIFICATION: A question posed here last Tuesday was if the RP-US Visiting Forces Agreement is constitutional or enforceable in view of its not having been ratified or concurred in by the US Senate.

As a consequence of the non-concurrence by the US Senate, it was added, the VFA is only an executive agreement and not a treaty. Since it is not a treaty, it does not satisfy a requirement of Section 25, Article XVIII, of the Constitution which says:

“… (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 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.”

The VFA, which entered into force on June 1, 1999, after concurrence by the Philippine Senate on May 27, 1999, provides for the mechanism governing the presence of US military personnel in the Philippines.

The agreement is again being dissected in the debate over the custody of the US Marine convicted Dec. 4 by the Makati City Regional Trial Court of raping a Filipina in Subic last year.

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MAJORITY RULING: Unknown to many people, the question has been answered by the Supreme Court. In G.R. No. 138570, dated Oct. 10, 2000, the Court in a majority ruling upheld the constitutionality of the VFA.

Nine justices led by then Chief Justice HHow would the Court, now under Puno, handle a fresh bid to question the VFA using the rape case as the opening?)

In G.R. No. 138570, the SC majority said more or less (and as I edited some sentences):

“It is inconsequential whether the US treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. As long as the VFA possesses the elements of an agreement under international law, it is to be taken equally as a treaty.

“A treaty, as defined by the Vienna Convention on the Law of Treaties, is ‘an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation.’

“In international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.”

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VALID & BINDING: The Court said further: “In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress.

“In Commissioner of Customs vs. Eastern Sea Trading, we had occasion to pronounce:

“ ‘x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.

“Furthermore, the US Supreme Court has expressly recognized the validity and constitutionality of executive agreements entered into without Senate approval.”

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U.S. COMMITMENT: To buttress its point, the Court cited the minutes of the Constitutional Commission that drafted the 1987 Constitution:

“ Mr. Maambong. Of course it goes without saying that as far as ratification of the other state is concerned, that is entirely their concern under their own laws.

“Fr. Bernas . Yes, but we will accept whatever they say. If they say that we have done everything to make it a treaty, then as far as we are concerned, we will accept it as a treaty.”

The records show that the US, through Ambassador Thomas C. Hubbard, has stated that the US government has fully committed to living up to the terms of the VFA.

The Court said: “For as long as the US accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.

“The ratification, by the (Philippine) President, of the VFA and the concurrence of the Senate should be taken as a clear and unequivocal expression of our nation’s consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.”

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RATIFICATION: The Court said: “The power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.

“With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the US, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement.

“As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof.”

(Reference to G.R. No. 138570, excerpted above, was suggested by readers Bill Mitchell of pobox.com, and former Ambassador Rodolfo A. Arizala, now residing in Santiago, Chile. Our thanks to them.)

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TRYING HARD: In its decision, Supreme Court appeared, at least to me, as trying unusually hard to justify the VFA. It dwelled only on arguments supporting the VFA.

The ponente sounded like our present-day Justice Secretary Raul Gonzales, whose persistent pro-American pronouncements qualify him for at least a US green card and full Medicare benefits.

With the detailed discussion by the ponente, some questions reared their ugly heads.

If there is no substantial difference between a treaty and an executive agreement, why did the framers of the Constitution go out of their way to require in Section 25, Article XVIII, that an agreement (such as the VFA) allowing foreign forces in the Philippines be “ recognized as a treaty by the other contracting State” (such as the US) to be valid?

Btw, critics are not saying that executive agreements are faulty instruments, but that the VFA, specifically, does not meet the treaty requirement of Section 25.

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EQUALITY: Such a requirement is proper as it forces the acceptance of the elements of reciprocity, equality and respect in bilateral relations.

There is imbalance with the Philippines treating the agreement as a treaty, going into the trouble of submitting it for Senate concurrence, while the other party (the US) looks upon it as just one of those agreements routinely signed by an executive agent of the White House.

What Section 25 require is not only a written assurance, as that one produced by the US ambassador, but a reciprocal legislative concurrence that would raise the contract to the level of a treaty.

Legislative concurrence has its practical value. It formally binds an important co-equal but separate branch of the government aside from the Executive.

If, for instance, there is need later for legislation or the appropriation of funds to carry out a provision in the VFA, legislative concurrence could be construed as prior consent. At the very least, it could exert moral suasion on the legislature to deliver.

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SELF-GRATIFICATION: The SC ruling also said that the power to ratify treaties is vested in the President alone and that the role of the Senate is limited to giving or withholding its consent, or concurrence, to the ratification.

Why then did the framers of the Constitution still insert another provision — Section 21, Article VII — requiring Senate concurrence? It says: “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”

What happens if the President ratifies a treaty but the Senate refuses to concur?

This happened on S ept. 16, 1991, when the Senate rejected the RP-US Treaty of Friendship, Cooperation and Security negotiated by the Executive. The proposed treaty would have extended the presence of US military bases in the Philippines.

That rejection exposes the fatal flaw of the SC theory that only the President, as the sole spokesman and implementer of foreign relations, wields the power to ratify the same treaties that he/she has negotiated and concluded.

My layman’s opinion will not matter, but I still say that that is, huh, indecent self-gratification.

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(First published in the Philippine STAR of December 21, 2006)

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