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promulgated Supreme Court decisions before jumping the gun and firing off fiery Resolutions that may soon have to be withdrawn in sheepish embarrassment.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:

KIKO FILES RESOLUTION TO TERMINATE VFA

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.