Palace open to senators’ call for VFA renegotiation

Malacañang has welcomed the move of seven senators who signed a resolution urging the Department of Foreign Affairs to renegotiate the 10-year-old Visiting Forces Agreement (VFA) of the Philippines with the United States. "We are open and welcome the moves of the Senate on the VFA revision. We believe the senators would know the best interests of the country and we respect their decision," said deputy presidential spokesperson Lorelei Fajardo said in a press briefing on Friday. The senators wanted a renegotiation because they claim that the agreement is unclear about the scope, duration of stay, and the extent of engagement of American forces in the Philippines. “(The) fatal flow of the VFA is the failure to specify the period of stay of visiting forces, and the failure to define what are the activities that they can engage in while in Philippine national territory," read Resolution No. 1356, which was signed by senators Miriam Defensor Santiago, Rodolfo Biazon, Joker Arroyo, Francis Pangilinan, Gregorio Honasan, Richard Gordon, and Panfilo Lacson. The resolution came out after Santiago, co-chairperson of the Legislative Oversight Committee on the VFA, found out about a report wherein a US military commander allegedly admitted that US troops were engaged in combat operations in the Philippines. She claimed that Col. David Maxwell, commander of the Joint Special Operations Task Force of the Philippines, said the "Philippine Constitution does not prohibit combat operations and provides an exception to this, if there is a treaty in force." The VFA disallows US troops from engaging in combat operations except for self-defense. Not the first time This was not the first time that Philippine lawmakers questioned the agreement ratified on October 5, 1998 by then President Joseph Estrada through then Foreign Affairs Domingo Siazon, and concurred in by the Senate on May 27, 1999 as mandated under Section 21, Article VII of the 1987 Constitution. (The said section states that, “No treaty or international agreements shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.") In January 2006, months after Suzette “Nicole" Nicolas accused US Marine Lance Cpl. Daniel Smith of raping her in Subic, lawmakers called for the termination of the agreement and its renegotiation into a pact that would allow the Philippines to have custody over US soldiers violating Philippine laws. Under the pact, American soldiers who violated Philippine laws, including those who are accused of non-bailable heinous crimes enjoy extraterritorial privileges, which means that while being tried under a Philippine court, they could be taken under the custody of the embassy or U.S. authorities. Under the agreement, the Philippine court is given only a year to finish the proceedings of a case involving a US soldier. The constitutionality of the VFA was also challenged twice before the Supreme Court, but the high tribunal dismissed the petitions against the agreement in its October 2000 and February 2009 decisions. Despite the senators’ opposition to the VFA, Fajardo expressed confidence that they would not overlook the "benefits" that the country was getting from the pact "in terms of security." Earlier, Executive Secretary Eduardo Ermita stressed the importance of the pact in helping improve the Philippines’ human rights record. Defense Secretary Gilbert Teodoro, who was recently anointed as the administration party’s standard-bearer, also defended the VFA. "Troops should be given the chances to work together, to train together. Military alliances are good things. That is why I am not for the abrogation of the VFA," he said. Not a treaty? The non-government Alternative Law Groups (ALG) has been claiming that the VFA did not become a binding agreement because it failed to satisfy the second constitutional requirement that it be recognized as a treaty by the other contracting state or the US government. According to ALG coordinator, lawyer Marlon Manuel, Section 2, Article 2, Clause 2 of the U.S. Constitution provides that the President "shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators concur. “Since the U.S. Senate did not ratify the RP-US VFA, it is not recognized as a treaty under US laws", said Manuel. “The ratification of the VFA under Philippine and U.S. Constitutions was one-sided and thus, incomplete." “A treaty is a formal agreement between sovereign nations. No agreement could ever materialize if there is no mutual concurrence. So how could the Philippine government oblige itself to follow something which was not constitutionally agreed upon by the contracting parties who were supposed to exchange ratifications?" he added. Manuel said that on the part of the U.S. government, the VFA is more of a sole presidential or executive agreement, which "is inferior to a treaty". He said that under the U.S. supremacy clause, the Constitution, the federal statutes and the U.S. treaties are the only established "supreme laws of the land". Like all other interminable international agreements, Manuel said the VFA would only subsist upon the consent of the parties involved. "Neither of the parties is bound forever by the VFA. The agreement maybe terminated upon a party's written notice of its intention to end the agreement, which becomes effective after 180 days from such notification," he said. - with reports from Aie B. See, GMANews.TV