Wednesday, February 18, 2009

Abrogating the VFA Would Only Free Daniel Smith

If we unilaterally abrogate or suspend the Visiting Forces Agreement (VFA),  Daniel Smith would escape Philippine Justice.   Why? Because by ending the VFA we would have removed all the guarantees of a fair trial, due process, equal protection, and protection against double jeopardy that are the only reasons the US allows any of its troops accused of crimes while off duty to be processed under Philippine jurisdiction, but not full custody and detention until "all judicial proceedings are completed." But without the VFA, the US Military would be under a moral obligation to evacuate Daniel Smith immediately since his personal, civil, political and human rights would no longer be guaranteed by the Philippine government and he could be exposed to mortal danger or unjust and inhumane treatment.

At Filipino Voices today I ask, Does the US Consider the VFA a Treaty?

One of the greatest intellectual disservices being committed by the mass media right now is not explaining the correct and simple answer to this question to the Public. Instead they have picked up on the jingoistic passions of the leftist lynch mobs with long historical axes to grind and allowed various misconceptions about this question to proliferate. With the help of guys like Professor Harry Roque and the grand titan of that ole time nationalism, the venerable Jovito Salonga. In this post, I beg to disagree with these men who are far more educated in the Law than I, but with whom we all share the common crafts of English Composition and reading the topologies of our consciences... Besides I just read the celebrated ponencia of the retiring Justice Adolfo Azcuna in the 9-4 SCoRP decision entitled, Suzette Nicolas y Sombillon v. Alberto Romulo (GR. No. 175888)

He explains the answer superbly...

FOREIGN TROOPS are not allowed on Philippine soil except as the 1987 Constitution provides in its Transitory Provisions:
After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, 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.

A controversy has been raised over the FACT that although the Philippine Senate duly concurred in the RP-US Visiting Forces Agreement, this VFA was never referred to the United States Senate to be ratified as a treaty. Why? Justice Azcuna explains:

The provision is thus designed to ensure that any agreement allowing the presence of foreign military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation in which the terms and conditions governing the presence of foreign armed forces in our territory were binding upon us but not upon the foreign State.

Applying the provision to the situation involved in these cases, the question is whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed “under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State.”

This Court finds that it is, for two reasons.

First, as held in Bayan v. Zamora, the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United States government.

The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its status as a binding international agreement or treaty recognized by the said State. For this is a matter of internal United States law. Notice can be taken of the internationally known practice by the United States of submitting to its Senate for advice and consent agreements that are policymaking in nature, whereas those that carry out or further implement these policymaking agreements are merely submitted to Congress, under the provisions of the so-called Case–Zablocki Act, within sixty days from ratification.

The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the concurrence of both the Philippine Senate and the United States Senate.

J. Azcuna notes that the RP US VFA was indeed registered with the US Congress within 60 days of its signing under the Case-Zablocki Act and an implementation of the Mutual Defense Treaty (as declared in the VFA's Preamble!). Thus in a sense, it WAS automatically ratified by the US Senate. Or the legal effect on the US is the same.

J. Azcuna concludes that therefore, that it is in fact the 1951 Mutual Defense Treaty, duly ratified by both Senates which "allows" the presence of the US troops on Philippines soil. The VFA is merely an implementing agreement that addresses the legal status of US service men who are part of those visiting forces. That is why it is mostly about mundane stuff like visas and customs. Less than 4 or 5% of treaties and international agreements that the US enters into ever requires US Senate concurrence. One reason is that the US has Status of Forcess Agreements and VFAs with over 90 countries.

So the answer, as SCoRP has now said twice and explained with crystal clarity is: YES the United States is bound by the VFA and the MDT as tightly and compleatly as the Republic of the Philippines is. Tighter!


Pedestrian Observer GB said...

So in effect the league of morons errr Philippine politicians thumping of their chest in wanting kuno to scrap VFA is actually shooting each other in the mouth, lol.

DJB Rizalist said...

They may already have realized this particular effect. The proposal will go nowhere except that it HAS changed the subject now.