POSTSCRIPT / December 26, 2006 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Can GMA just order GI moved to embassy?

RELENTLESS: When will the bloody campaign to exterminate pesky journalists end?

The day after broadcaster Andres Acosta was murdered Dec. 21 in Batac, Ilocos Norte,dzMM radio station correspondent Rufino Gamboa was shot and wounded by a motorcycle-riding assailant in San Jose City, Nueva Ecija.

Acosta’s murder brought to 12 the number of media persons murdered in 2006, and to 48 those killed since Gloria Arroyo assumed the presidency.

Gamboa, also a reporter for radio station dwNE in Palayan City, was wounded in the arm and chest. He was going home on a tricycle after covering an affair where Nueva Ecija Vice Gov. Mariano Cristino Joson was the speaker.

The would-be assassin moved close to the tricycle and fired at Gamboa. Though wounded, Gamboa was able to alight and run.

The killers — presumably hired guns — are relentless. Btw, what is the National Press Club doing? Why its unusual silence?

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JUST DO IT: If President Arroyo’s chief legal adviser is sure that she has the authority to order the transfer of the US Marine convicted of rape from the Makati jail to the US embassy, let the President do it and put an end to this embarrassment.

“We are the jailer so we can decide where to detain a convicted criminal,” presidential legal counsel Sergio Apostol told the media in Quezon City last Saturday.

He added that if the President orders the Marine’s transfer, the court would not be able to do anything but “cite the Executive department for contempt.”

So let her do it. Being cited for contempt is nothing compared to being hounded by the US government to comply with the RP-US Visiting Forces Agreement that places an erring American personnel under US custody while the judicial process is ongoing.

We look pitiful before a watching world. We never grew up as a nation, so here we are being pushed around like beggars in the street.

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WRAP-UP: Taking off from the discussion in my Postscript of Dec. 21 (“SC has upheld VFA as valid. Is it, really?”), former Ambassador Rodolfo A. Arizala wrapped up the key issues rather nicely, I think.

In an email from Santiago, Chile, where he now resides, Arizala noted Postscript’s reporting that the Supreme Court in its majority-vote decision (G.R. No. 138570) on Oct. 10, 2000, already upheld the constitutionality of the VFA.

There have been criticisms that the US treats the VFA as a mere executive agreement not subject to US Senate concurrence, while the Philippines considers it as a treaty concurred in by the Senate.

But the Supreme Court ruled: “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.”

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QUESTIONS: Arizala’s summary continues (all the way down, with minimal editing):

There are those, however, who entertain doubts as to the validity of the VFA citing Section 25, Article XVIII, of the Philippine Constitution which provides that after the expiration of the RP US Military Bases Agreement 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, x x x and recognized as a treaty by the other contracting state.”

Some observers also asked why the power to ratify treaties is vested in the President alone and that the role of the Senate is limited only to giving or withholding its consent or concurrence to the ratification.

Both questions are, indeed, relevant and we should seek satisfactory answers or explanations.

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COMITY: While there is such a provision in the Constitution, a State cannot oblige another sovereign State to follow the Constitution or laws of another. We cannot oblige the US to follow our Constitution or insist that the US Senate should also concur in the VFA to make it valid.

According to authorities in International Law, “the laws of every State operate within the territorial limits of such State and are binding on all subjects but not beyond these limits.”

However, a State may apply foreign laws under the doctrine of Comitas Gentium or Comity of Nations — by reason of courtesy or expediency. Thus, wrote the Dutch jurist Voets: “States were no under obligation to apply foreign laws but that such application, unless imposed by treaty, results only from comitas gentium that is, from consideration of courtesy and expediency.”

From the foregoing, it is clear that the provisions of the Constitution are binding only and operate within the territorial limits of the Philippines. If ever they are accepted by other States, it is by reason of a treaty or comity of nations.

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VIENNA ACCORD: Granting arguendo that such non-concurrence by the US Senate constitutes a legal infirmity, under Article 27 of the 1969 Vienna Convention on the Law of Treaties to which both the US and the Philippines are signatories, “A party may not invoke the provisions of its internal law (Sec. 25, Article XVIII, RP Constitution), as justification for its failure to perform a treaty.” (Words in parenthesis, supplied.)

Also, Article 46 of the same Vienna Convention provides: “ A State may not invoke the fact that the consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.”

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CONCURRENCE: Under the 1935 Constitution, “the President shall have the power, with the concurrence of two-thirds of all the members of the Senate, to make treaties.”(Para. 7, Section 10, Article VII), while the 1987 (present) Constitution provides under Section 21, Article VII, “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.”

It is clear, therefore, that the President has the power to conclude treaties and ratify them, but the Senate must concur in order that a treaty will be valid. In other words, the President ratifies treaties, while the Senate concurs in the ratification.

This view is supported by Prof Jovito Salonga in his book, Public International Law, 1974 edition, p. 314, where he said: “Ratification, as such, is vested in the Head of State, although it may be qualified by providing that ratification shall not be given without prior legislative approval.”

Another authority, Prof. Rocco Tresolini, in his book Constitutional Law, 1959 edition, said that the President of the United States has authority to ratify treaties after receiving the concurrence of two-thirds of the Senate.

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SOLE VOICE: The supremacy of the Chief Executive in the conduct of foreign relations is better explained in the following language of the US Supreme Court on the Curtiss-Wright decision:

“In the vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates.

“Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. As Marshall said in his great argument on March 7, 1800, in the House of Representatives, The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

Under our system of government, the Executive submits to the Legislative (Senate) the treaties with a statement that the President intends to ratify the agreements and suggests or requests that the Legislative concur in the ratification.

The Senate deliberates on whether or not to agree with the ratification, but does not itself ratify the acts of the envoy since it is not the Senate that is the principal for the envoy, but the President who is the head of the Executive.

What happens if the President ratifies a treaty but the Senate refuses to concur? The answer is obvious: there will be no treaty to enforce.

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(First published in the Philippine STAR of December 26, 2006)

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