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January 27, 2020

VFA Termination: Easier Said Than Done?

VFA Termination: Easier Said Than Done? US President Donald Trump and President Duterte hold a bilateral meeting on Nov. 13, 2017 at the Philippine International Convention Center in Pasay City on the sidelines of the 31st Association of Southeast Asian Nations summit and related meetings. Photo by KJ Rosales, The Philippine STAR

Can President Duterte terminate the Visiting Forces Agreement (VFA) on his own without concurrence by the Senate, under a Constitution that provides for checks and balances?

This may be the question that first comes to mind among law students and legal practitioners, ahead of national security concerns or criticisms about the lopsided nature of the deal and crimes and human rights abuses allegedly committed by American servicemen.

The question may not be easy to answer, especially as the Supreme Court has yet to resolve the validity of the Philippines’ withdrawal from the Rome Statute of the International Criminal Court. The withdrawal took effect on March 17, 2019 without the SC’s intervention.

Lawyer Romel Bagares of human rights advocacy group Center for International Law compared the situation of the Rome Statute with that of the VFA, recalling that Article 7, Section 21 of the 1987 Constitution only provides that “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.

In the case of the Rome Statute, the Office of the Solicitor General used the silence of the constitutional provision on withdrawal from or termination of international agreements. It argued that the Constitution gave the president of the republic the sole leeway – as the architect of the country’s foreign policy – to determine for himself if honoring its obligations would remain in the country’s best interest.

The Rome Statute is an agreement that led to the formation of the ICC, which was approved on July 1, 1998 and became effective on July 1, 2002. As of October 2017, there were 123 member states in the ICC. 

Duterte withdrew the Philippines from the tribunal after its chief prosecutor Fatou Bensouda, whom he insulted, announced that the ICC was conducting a preliminary examination of accusations that he and other Philippine officials have committed mass murder and crimes against humanity in conducting the war on drugs. Several complaints have been filed against Duterte before the ICC, including by relatives of alleged victims of extrajudicial killings under his administration.

The Philippines signed the Rome Statute in 2000, but it was not ratified immediately due to Malacañang’s refusal to go to the Senate for concurrence. But it was ratified by the Senate in 2011 after then president Benigno Aquino III signed the instrument of ratification.

Former senator Loren Legarda, who chaired the foreign relations committee at the time, “hailed the Senate” for “wasting no time in putting its stamp of approval on the treaty” and lauded the late senator Miriam Defensor-Santiago for ably sponsoring the “ICC treaty.”

Thus, answering the question on whether Duterte can terminate the VFA on his own might also depend on whether the VFA can be considered a “treaty” or an “executive agreement.” (This is despite Duterte’s decision to withdraw the country from the ICC without Senate approval.)

Foreign Secretary Teodoro Locsin Jr. described the VFA as a “treaty on our side, an executive agreement on the United States’ side.” Meanwhile, Chief Presidential Legal Counsel and spokesman Salvador Panelo said his office was looking at two theories: the VFA could be unilaterally terminated by the President since the US considers it an executive agreement, or the Senate’s consent is still needed because of its power of oversight over the agreement’s enforcement.

Antonio La Viña, a professor at the University of the Philippines College of Law and the Ateneo de Manila University School of Law, believes there is “no need for Senate action” in terminating the VFA and that it was not similar to the Rome Statute.

“This is an executive agreement, not a treaty like the Rome Statute,” La Viña told The Philippine STAR.

Asked about the fact that the Senate ratified the VFA on May 27, 1999, he said “it does not matter” when talking about the character of the agreement.

Unlike the question of whether withdrawal from treaties requires the Senate’s consent, the SC already had the chance to declare that “executive agreements” – or those agreed upon by the presidents of the contracting states and their alter egos – are not subject to the same stringent process.

In a Jan. 12, 2016 decision on the case of Saguisag versus Ochoa, the SC declared that the Enhanced Defense Cooperation Agreement (EDCA) was not constitutionally infirm. It dismissed the petitions that were hinged on the lack of Senate concurrence with the April 28, 2014 deal forged by Aquino and then US president Barack Obama.

The SC ruled that the EDCA was an executive agreement that “merely aims to implement” the long-existing 1951 Mutual Defense Treaty, and is “not the instrument” that allowed American troops to construct facilities and preposition defense and disaster response equipment to designated areas within the Armed Forces of the Philippines’ bases nationwide. Hence, there was no need to allow foreign military bases, troops or facilities “under a treaty duly concurred in by the Senate,” as provided by Article 18, Section 25 of the 1987 Constitution.

In other words, those who consider the VFA to be an executive agreement could use this decision to justify terminating it without the Senate’s consent.

But the Oct. 10, 2000 and Feb. 11, 2009 decisions of the SC in the case of Bayan versus Zamora and Nicolas versus Romulo considered the VFA as a treaty that “was duly concurred in by the Philippine Senate and has been recognized as a treaty by the (US) as attested and certified by the duly authorized representative of the (US) government.”

It may be noted that the VFA did not actually go through the process of Senate concurrence in the US, because it was considered an executive agreement there. In this case, the SC said this did not matter as it was only “a matter of internal (US) law,” and from the point of view of international law, it was recognized as a “binding international agreement or treaty.”

Another point to be considered is the Senate’s apparent doubt regarding its role in the termination process.

 Senate Minority Leader Franklin Drilon, who joined opposition colleagues in filing one of the pending petitions against the withdrawal from the ICC, said last week that he tried to introduce a Senate resolution requiring the 24-member chamber’s concurrence in the termination of treaties in general.

However, he disclosed that Sen. Manny Pacquiao blocked its passage. For Drilon, this meant the VFA “can now be terminated without the concurrence of the Senate.”

Meanwhile, Sen. Panfilo Lacson said the lack of a declaration by the SC to the contrary meant there was nothing to prevent the President from proceeding with the termination of the VFA.

“In the absence of a Philippine Supreme Court ruling on the President’s power to unilaterally break a treaty or bilateral agreement like the VFA without the consent of a 2/3 supermajority vote of the members of the Senate, the President can do that without the Senate’s approval or consent,” Lacson said. “Having said that, the (SC) should act soonest on whether the Senate’s consent is needed before the executive department can terminate a treaty or bilateral agreement – an issue raised in a petition filed before it by members of the Senate.”

This seemed to be a turnaround from the legislative oversight committee’s vote in 2006 to recommend the abrogation of the VFA, in the aftermath of the case of Lance Corporal Daniel Smith, whom a Filipina identified only as “Nicole” accused of rape inside a moving van in 2005. (“Nicole” recanted her allegations in a 2009 affidavit, and the Court of Appeals reversed Smith’s 2006 conviction by the Makati City Regional Trial Court.)

Sen. Aquilino Pimentel III, chairman of the Senate committee on foreign relations, said the upper chamber will review the VFA to determine its benefits and disadvantages.

Lopsided agreement?

Signed in 1998, the VFA allows Filipino and American troops to conduct joint trainings in Philippine soil. It was ratified by the Senate in 1999 despite protests by activists who claimed it violated Philippine sovereignty.  

Aside from the VFA, other defense agreements between Manila and Washington include the EDCA, a 2014 pact that provides American troops access to some Philippine military bases; and the Mutual Logistics Support Agreement signed in 2002. The agreements were in accordance with the 1951 Mutual Defense Treaty, which allows the Philippines and the US to jointly develop their security capabilities to counter external armed aggression.

Panelo emphasized the EDCA and MDT are safe. “They are still there. They won't change. We are just talking about the VFA."

"He (Duterte) did not say (that the other agreements would be terminated). He just mentioned one," he noted.

Panelo said only the privileges of American soldiers would be removed once the VFA is scrapped. He said under the VFA, the Philippines cannot have jurisdiction over American soldiers who commit crimes in the Philippines unless the crime is “of significant importance.” Visiting American servicemen, Panelo added, are also not required to secure a Philippine visa.

“In other words, the VFA favors the Americans,” Panelo said. “In terms of crimes being committed? No, (it is not beneficial to the Philippines) because they will assume jurisdiction... there was only one case where we assumed jurisdiction, because it created a scandal," he added without elaborating.

There have been two criminal cases involving American servicemen in the Philippines. The first was the 2005 Subic rape case and the second was the killing of transgender Jeffrey Laude in Olongapo in 2014.

Panelo claimed that the scrapping of the VFA would not affect the Philippines’ efforts to protect its sovereignty. He cited the termination of the military bases agreement in 1991, which he said, did not have an adverse impact on the country.

“The VFA is more on the privileges granted to the American military. It does not (cover) all other treaties (that) are relative to the security of the Philippines’ alliance with the United States,” Panelo stressed.

Panelo said the annual Balikatan military drills between Philippine and American forces would continue.

Irritants

Last week, Duterte threatened to terminate the VFA in response to the cancellation of the US visa of his political ally and former police chief Sen. Ronald dela Rosa.

Duterte has given the US one month to “correct” the cancellation of the visa of Dela Rosa, principal implementer of his controversial war on drugs, or the VFA would be terminated.

Dela Rosa said he was not told of the reason for the cancellation of his visa although he noted that the visa of another police official involved in the drug war was likewise revoked.

The Department of Foreign Affairs announced over the weekend that the process for the termination of the VFA had started. The Department of Justice said it would submit a memorandum to Malacañang today to answer legal questions related to the agreement.

The cancellation of Dela Rosa’s visa is just the latest irritant between the Philippines and the US since Duterte took office.

Duterte had lashed out at Obama for criticizing his drug war. US senators have also demanded the release of Sen. Leila de Lima from detention. De Lima claims she was jailed on trumped-up drug charges.

Last Dec. 20, US President Donald Trump signed into law the 2020 State and Foreign Operations appropriations bill that included an amendment banning the entry to the US of Philippine government officials involved in jailing De Lima.

Panelo said the Philippine government cannot interfere in “the process of the US legislature” and that it was not bothered by the US move.

Later, however, the Palace said Duterte may not attend a special summit in Las Vegas, Nevada in March between the US and the Association of Southeast Asian Nations upon the invitation of Trump. Duterte’s threat to terminate the VFA followed.

Panelo could not say whether Duterte's stance on VFA would change if US agrees to give Dela Rosa a visa.

"It's just one of the reasons. We do not know whether it would affect his decision because his decision was based on several actions that violated our sovereignty. It also includes disrespect," Panelo said.

"For example, the VFA extended several privileges. And then you cancel the visa of a senator without stating the reasons for doing so. Isn't this too one-sided in terms of privileges granted?" he added.

Panelo explained the termination of the VFA would be in effect 130 days after the US is formally notified of the desire to scrap the pact. He could not say whether the letter notifying the US of the Philippines' intention to terminate the VFA has been sent.

Panelo claimed the US does not need to respond to the letter for the VFA to be terminated.


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