Wednesday, February 18, 2009

Please Tell Kiko

It seems pretty obvious that our Senators do not bother to read newly promulgated Supreme Court decisions before jumping the gun and firing off fiery Resolutions that may soon have to be withdrawn in sheepish embarrassment. Take for example this Press Release from the Office of Senator Kiko Pangilinan  which reads:

Independent senator Francis "Kiko" Pangilinan today filed Senate Resolution No. 892 calling for the termination of the Visiting Forces Agreement (VFA) on the grounds that its provisions are "contrary to the 1987 Philippine Constitution."

In a two-page resolution, Kiko cited the circumstances and the decisions made in the case involving convicted rapist Lance Corporal Daniel Smith, particularly the Romulo-Kenney agreements of December 2006 placing Smith under the custody of the US Embassy, as well as the Medellin vs Texas case of March 2008, where the US Supreme Court upheld that "a treaty, even if ratified by the United States Senate, is not enforceable as domestic federal law in the United States, unless the US enacts the implementing legislation, or the treaty by its terms is self-executory and ratified by the US Senate as such."

"This clearly violates our constitutional provision on the presence of foreign military bases, troops, or facilities in the country since one of the conditions is lacking, to wit: to recognize it as a treaty by the other contracting state," the resolution reads.

The resolution calls for the expression of "the sense of the Senate that Philippine sovereignty should be respected by other states and should in no way be put in jeopardy by any treaty or agreements previously entered [into] by the Philippine Government."

The resolution also asks the President to "re-visit the provisions of the VFA and accordingly exercise our right to terminate the Agreement considering that supervening events have rendered the VFA as unconstitutional."

"Their Supreme Court rendered the VFA unconstitutional in the Philippine territory and now they invoke this unconstitutional agreement to keep a convicted rapist out of our reach," Kiko pointed out. "Have we no self-respect? We shouldn't be groveling at their feet. The President should terminate the VFA now if we are to preserve whatever respect we have left. Any national leader of a self-respecting nation would do the same given the lopsided circumstances."
The good Senator makes several claims which are however directly and explicitly contradicted by the ponencia of retiring Associate Justice Rodolfo Azcuna in the 9-4 resolution of the case, Nicolas v. Romulo (2009)

(1) He claims that RP-US Visiting Forces Agreement is unconstitutional. Yet twice already, the Supreme Court has unequivocally upheld the Constitutionality of the VFA, both in the present case and in Bayan v. Zamora (2000).

(2) Kiko cites the decision of the US Supreme Court in Medellin v. Texas and though he interprets the meaning of the case correctly, it is irrelevant and immaterial to the VFA because, as J. Azcuna succinctly explains, the VFA is considered by the US as a self-executing agreement duly registered as such as required by the Case-Zablocki Act which gives treaty force to these agreements even without formal Senate ratification.  
J. Azcuna: "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.[6]  

Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the Case–Zablocki Act within 60 days of its ratification. It is for this reason that the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.[10]"
(3) Regarding the alleged violation of the ban on foreign troops on Philippine soil without a treaty,  J. Azcuna likewise instructs the young Kiko...
J. Azcuna: "The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the presence of the US Armed Forces through the VFA is a presence “allowed under” the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence."
To summarize the salient points in the Decision that the good Sen. Pangilinan evidently never bothered to read:  (a) The VFA has now been declared "Constitutional" by the SCoRP twice; (b) it is a duly registered executive agreement with the force of a ratified treaty under the Case Zablocki Act; and (c) the "treaty" required by the constitution to allow US troops on Philippine soil is not Visiting Forces Agreement but the 1951 RP US Mutual Defense Treaty, which WAS duly concurred in by both US and Philippine Senates and continues in force.


Dave said...

Perhaps the good Senator should see his Doctor about his apparent case of CRIS. (Cranial Rectal Inversion Syndrome.)

In "Medellin", the US Supreme Court
simply said that the agreement between the US and Mexico did not authorize the US government to intervene in or override state law.
The case referred to a Mexican national living and working in Texas and who was condemned by Texas courts.

What does this have to do with a service member sent to the Philippines under military orders and subject to Philippine law under VFA?

To quote the King of Siam: "Is a puzzlement".

Kiko Pangilinan said...

Hi Dean! This is Kiko.

Allow me to clarify that I did read the decision penned by Justice Azcuna. I also poured over the dissenting opinions of CJ Puno and Justice Carpio. It is a cardinal rule in the legal profession that you must read a decision first before you can comment one way or another.

Both Puno and Carpio assert in their dissenting opinions that the Medellin Ruling in 2008 rendered our VFA as unconstitutional under our own constitutional provisions on treaties involving the entry of foreign troops in Philippine territory.

I happen to think that the arguments posited by both Puno and Carpio are far more superior than that presented by Azcuna and have framed my resolution guided by the dissenting opinions.

As a co equal branch, we serve as a check and a balance to the other two branches of government and my resolution disagreeing with the Azcuna opinion is a legitimate exercise of our mandate to serve as a check and a balance on the judiciary. We respect the decision but we respectfully disagree with it.

In addition, the ruling is not final until a motion for reconsideration is disposed of. Until then, the decision can still be overturned. Its unlikely but then again perhaps public sentiment and maybe, just maybe a Senate Resolution expressing the sense that the VFA ought to be terminated may help change the minds of some of those who voted with the majority.

If it cannot be reversed through this motion for reconsideration then we hope that perhaps a future Court composed of a different set of Justices (6 new ones coming in this year) will see the wisdom of the minority opinion in a future case that may be brought before it.



ricelander said...

Hey, Dean, that's really the senator husband of Sharon, steppa of KC.

Mr. Noted, he. Haha.

Welcome to blogosphere, Honorable!

DJB Rizalist said...

Welcome to Philippine Commentary Kiko Pangilinan.

If the SCotUS decision Medellin v. Texas made the VFA "unconstitutional" then it also made about ninety other Case-Zablocki covered Status of Forces and Visiting Forces Agreements maintained by America unconstitutional. It should be the biggest legal news in all those jurisdictions. Yet only the Philippine Senate has apparently noted such a titanic shift in international jurisprudence.

But more sober discussions of Medellin online inform me that this dire interpretation in the Philippines is entirely mistaken in its essentials.

Furthermore, the discussion in Azcuna's ponencia of Medellin is hard to refute: he claims the RP US VFA is registered under Case Zablocki (like all those other VFAs and SOFAs).

SCotUS did not invalidate 90 Sofas and VFAs with Medellin v. Texas, or we would've heard about it big time. As far as I can tell Medellin clips the powers of the World Court (ICJ) to tell US courts what to do!

There is another route which I would take if I were convinced that VFA ought to be terminated. I would call for a national referendum on the issue as explicitly provided for by the Constitution.

It would however, have to involve abrogation of the RP US Mutual Defense Treaty, which has been duly concurred in and ratified by both Senates.

Because it is that document which constitutes the treaty required by 1987 to allow the presence of US troops on Philippine soil. Not the VFA, which is just a side agreement that implements a particular objective of the MDT.

I find this persuasive and it is not contravened by the dissenting opinion of Puno.

The majority did not find the rest of his arguments persuasive. Nor do I.

Abrogating the VFA would not achieve the goal of disallowing US troops. It would only inconvenience the two militaries in the absolutely urgent task of training, planning, intelligence now sponsored and enabled by VFA.

Abrogating or suspending VFA is the surest way for Daniel Smith to escape PHilippine justice.

Dave said...

BTW: It would also seem to me that scrapping the VFA without also
scrapping the MDT, would mean that the Philippines would have NO jurisdiction over US military personnel.

Back to 1899 anybody?

DJB Rizalist said...

There is no real political or public support for abrogation of either agreement. But this argument perpetually arises. What is most vexing is that all the issues would go away in this case, if only the appeals process would be completed as quickly as the trial phase. It took a year for trial. Two years have passed that I think should've seen either acquittal at the Court of Appeals in the first year and SCoRP proceedings to finish it off one way or another.

There are no controversies once "judicial proceedings" are completed.

Dave said...

Got ya Dean. We have a rather "prima facie" case of opportunistic political posturing.

However, I cannot resist noting that a decision by SCOTUS is alleged to determine what is permissible under the Philippine constitution. And it is Filipinos making the allegation.

So while Uncle Sam says that the Philippines is a republic, certain Filipinos are insisting in colonial status. Interesting world, ain't it?