POSTSCRIPT / October 28, 2010 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Noy not ready to test US patience on VFA

CLARK FIELD – There are no clear signs that the Aquino administration will suggest abrogation of the RP-US Visiting Forces Agreement in the coming review of the 12-year-old pact.

At this its tender age, while the Aquino administration may be willing to tango, it is not ready to tangle with Uncle Sam.

Executive Secretary Paquito Ochoa Jr. just reiterated last Sunday the administration’s commitment to a “thorough” review of the VFA with the aim of reaping “maximum benefits” for the Philippines.

Ochoa chairs the presidential commission on the VFA that was reconstituted recently “to ensure that visiting US troops respect Philippine laws, policies, public morals, customs and traditions.”

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MERE REVIEW: Put plainly, the 2,645-word VFA defines the continuing status of US forces in the country — how they should operate and how we should treat them.

The two countries are careful not to call the coming discussions a “renegotiation,” a term that might raise false hopes among those objecting to its onerous provisions. The talks are simply referred to as a “review.”

Renegotiation could lead to the reopening of the pact for wholesale revision, or even its abrogation. A review suggests, at least to this observer, only a rewriting of the contentious text, but without overhauling the substance.

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NOISE FROM THE LEFT: Expect some senators and the usual “nationalist” sectors to demand a full renegotiation. (Adroitly managed, heckling from the left could bolster the hand of the government at the negotiating table.)

Article IX of the VFA provides that the pact, signed Feb. 10, 1998, “shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.”

But in the face of geopolitical and security realities, we could assume that no termination or abrogation would result from the review. That would be too bruising for President Aquino.

Instead, the administration’s focus is likely to be just the maximizing of aid and material benefits from the US, in addition to “millennium” doles and surplus military hardware promised under earlier pacts.

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ANOTHER PROMISE: Showing keen interest in Mindanao lately, the US has hinted it is ready to help the Philippines push its claim on some Spratly isles down south. However, what kind of assistance is not clear.

We should take a wait-and-see attitude toward Washington’s alleged readiness to stand by its long-time friend and ally, especially in relation to China, the mightiest among the Spratly claimants.

When Great Britain rushed in 1963 the federation of what is now Malaysia and included Sabah despite the standing claim of the Philippines on that corner of North Borneo, the US dumped Manila and sided with London.

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SENATE ACTION: Section 25 of Article XVIII of the Constitution says that “… foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State.” (Emphasis mine – fdp)

Hewing to that constitutional requirement, our Senate ratified the VFA in May 1999, giving it its proper valuation.

But the US Senate found no need to ratify it, relegating the document to the category of a mere executive agreement. Some Americans explained that the contract flows from an older RP-US treaty already ratified by the US Senate.

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VFA NOT A TREATY?: While a treaty and an executive agreement are both binding, they are not exactly the same.

Treaties are international agreements that bind the US through a minimum two-thirds vote of the Senate. An example is the RP-US Mutual Defense Treaty of 1951.

On the other hand, other international agreements — often referred to as executive agreements — are brought into force on a constitutional basis other than with the advice and consent of the US Senate. The VFA is an example.

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VALUE-ADDED: In our Postscript of Aug. 30, 2009, we pointed out that ratification also has its real and psychological value.

Ratification not only binds the legislature as regards the treaty’s being brought to force, but also commits it to look with favor on subsequent congressional action that may be needed to carry out treaty provisions.

In an executive agreement, there is a procedural gap between the Executive that signed it and the Legislative body whose cooperation and consent may be needed to enforce a provision, such as the funding under the agreement.

Under an executive agreement, the Senate’s ready acquiescence cannot be presumed.

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RECIPROCITY: An essential element of the VFA should be reciprocity, embodied in the letter and the spirit of the pact, as well as in its implementation.

Reciprocity is fairness. It means that what we grant the Americans they should also grant us. Our two countries are supposed to be allies on equal footing, at least in theory.

Recall the rape case of visiting serviceman Daniel Smith, who was snatched from the Makati jail and transferred to a US embassy facility. Can we execute a similar rescue of a Filipino soldier charged with rape in the US?

We should be very particular about reciprocity and mutuality. Whatever rights and privileges we grant American military and civilian personnel visiting under the VFA, the US should also grant Filipino visitors similarly situated.

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JURISDICTION: On the thorny issue of criminal jurisdiction, reciprocity should also be observed.

If an American visiting under the VFA commits an act against a Filipino that is considered a crime under Philippine laws, the act should immediately fall under the primary and exclusive jurisdiction of our judicial system. His commander or supervisor should surrender him to local authorities without delay. He must be tried in Philippine courts, detained in a local jail if not granted bail, and serve sentence here upon conviction.

Why so? Because that is exactly what will happen to a Filipino soldier who runs afoul of the law in the US.

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(First published in the Philippine STAR of October 28, 2010)

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