The VFA Constitutionality Dissected
March 4th, 2009 by Ding G. Gagelonia
The controversial RP-US Visiting Forces Agreement is unconstitutional, according to a noted expert in constitutional and international law.
Former undersecretary of foreign affairs and former UP College of Law Dean Merlin Magallona pointed this out in a paper entitled ‘PHILIPPINE SOVEREIGNTY AS A SIDE-SHOW: THESES ON THE VISITING FORCES AGREEMENT presented during a colloquium at UP Diliman’s Malcolm Hall.
http://midfield.files.wordpress.com/2009/03/dean-merlin-magallona-vfa-theses1.pdf
Dean Magallona detailed the erroneous premises contained in the recent 9-4 decision of the Supreme Court upholding the validity of the Visiting Forces Agreement in connection with thr case of Lance Corporal Daniel Smith.
Dean Magallona pointed out that while the Philippines is complying with the VFA as if it were a treaty with all its attendant obligations, the US treats it only as an executive agreement not binding in the American mainland:
In defiance of the constitutional text plainly indicating that the VFA does not conform to the standards of validity under the fundamental law, the US Government has never shown any intention of transforming the VFA into a treaty as characterized by the US Constitution. It has insisted all the time that VFA is in compliance with the Philippine Constitution because the US Government recognizes it as a binding agreement under international law. This position, reflected in a letter of the US Ambassador to the Philippines (Thomas C. Hubbard) and made part of the record of the case, appears to have been the line of reasoning accepted by Bayan and pursued in Nicolas.”
It is a misconception to disregard the special character of a “treaty” in this constitutional sense, more so because it is replaced by the notion that it is to be understood in its “ordinary meaning” applied “in common use”. The misconception acquires a sharper focus owing to the clear implication that “treaty” taken in its ordinary meaning in common used, as explained by the Supreme Court in Bayan, eliminates the difference between a treaty and executive agreement. The ordinary meaning of “treaty” embraces an executive agreement; a treaty and an executive agreement are both agreements understood as treaty in ordinary meaning as adopted by Bayan. This misconception becomes a fundamental premise of Bayan’s ratio decidendi, considering that the United States, the other contracting party, executed the VFA as a mere executive agreement.”
In the process, the term “treaty” as used in section 25, Article XVIII of the Constitution has suffered so much torture that it becomes unrecognizable as Bayan engages in relentlessly liberalizing the interpretation of the constitutional text. As a result, the term has lost its plain meaning as understood in the Philippine Constitution as well as in the US Constitution as Bayan eliminates the distinction between “treaty” and “executive agreement,”
“In the end, Bayan implies that the US Government has recognized the VFA as a treaty by comcluding and executive agreement,” Magallona said,
Since it would seem inevitable, pursuant to the concept of a treaty as used and recognized in the context of domestic law, that the constitutionality of the VFA cannot be sustained.
What has happened, Dean Magallona told this writer, it thar the Philippines’s 1987 Constitution is subjugated to international law and not the other way around.
With this vantage point, Bayan may have created the need to remind the Court that it is not sitting as an international tribunal which subordinates the Constitution to treaty obligations and, in doing so, does violence to the nature of the law at bar which is instituted for the purpose of determining whether the treaty in question ― the VFA ― contravenes the Constitution. Bayan now turns the table and instead raises the issue whether the Constitution should be interpreted in conformity with the said treaty!
The UP law professor and acknowledged expert on constitutional and international law warned:
If it is to be assumed that if the Court finds justification to strike down a treaty as unconstitutional, it is aware that under international law its decision becomes an act of the Philippines as a State which is constituted as an internationally wrongful conduct by which the Philippines would incur international responsibility pointed out in Bayan, as quoted above.”
Will the Court be motivated to avoid making a decision adverse to the treaty pursuant to the approach taken by Bayan and Nicolas even if the Constitution and the facticity of the case warrant?
“Referring to the motions for clarification filed by the government, civil society groups and the lawyer of Nicole Smith’s rape victim,” Dean
Magallona said:
The Parties come to the Supreme Court in reliance of the faith that it will exercise the power of judicial review by which on the basis of constitutional standards it may declare a treaty or executive agreement unconstitutional.”
Instead, they are told, as in Bayan and Nicolas, that the Philippine Government together with the parties, that they must conduct themselves under the Constitution and the laws in such a manner as to give due respect to obligations under the international law of treaties over and above the Constitution.
Regarding the controversy over Smith’s continues detention in the US Embassy instead of a Philippine jail, Magallona had this to say:
On the question of detention, the provision of the Visiting Forces Agreement (VFA) in paragraph 10, Article V, assumes significance: The confinement or detention by the Philippine authorities of the United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance. (Emphasis added)
The master principle in this provision is that detention shall be under the control and authority of the Philippine Government. It excludes the choice as to whether one or the other Government will have the authority over detention.
The sense of this provision is that the agreement between the “appropriate Philippine and United States authorities will not deal with the said choice. Their agreement is restricted to implementation of the authority exercised by the Philippine authorities, for example, as to which jail facilities or prison establishment is desirable or appropriate under the circumstances. Their agreement must subserve compliance with the master principle.
The last sentence reinforces the continuing operation of the master principle. It assumes meaning only under the condition that the detention is under the authority of the Philippine authorities. The right to visit and material assistance on the part of the US personnel serving sentence holds no meaning if the detention were under the US authorities.
In this respect, the Romulo-Kenney Agreement contravenes the master principle itself. It has transferred the authority over detention from the Philippine authorities to the US authorities.
Hence, on the question of detention, the application of Article V(10) of the VFA application in Nicolas needs to be re-structured. Interpreting this provisions, Nicolas states:
And this specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be “by Philippine authorities” (Emphasis added)
This interpretation appears to subordinate the imperative rule that detention shall be “by Philippine authorities” to the agreement of the parties. Rather, the meaning of the provision in question calls for that agreement to perform only one function, i.e., to determine the specific detention “facilities” by way of putting into concrete effect the authority and control of the Philippine Government over the detention. Such agreement, in other words, is addressed to one problem: which prison or jail facilities already established as such by the Philippine authorities will be the place of confinement or detention?
This interpretation is in accord with the demand of reciprocity and mutuality in relation to a comparable provision under the US-RP Agreement “Regarding the Treatment of Republic of the Philippines Personnel Visiting the United States of America”, in which Article IX(1) on “Confinement and Visitation provides:Confinement imposed by a United States federal or state court upon Republic of the Philippines personnel shall be served in penal institutions in the United States suitable for the custody level of the prisoners chosen after consultation between the two governments. (Emphasis added)
This “second VFA” so-called leaves no double that the choice to be undertaken by the “consultation” ― certainly the more appropriate word than “agreement” as implied in the “first VFA” applied in the Philippines ― by the two parties. It is submitted that the same meaning be given to Article V(10) of the VFA in question.”
This writer understands that Dean Magallona has been requested by Nicole, through her lawyer Evalyn Ursua, to join them in presenting their bid to get the Azcuna valedictory ponente overturned and for the VFA to be formally declared unconstitutional.
March 4, 2009 at 10:14 pm
side-topic on international law:
(i) I had always believed that the USA invading Panama, taking prisoner its then-sitting President (Manuel Noriega) and putting him into a florida jail must have been illegal.
—————–
Now the International court of justice has put out an arrest warrant for another sitting president.
THE HAGUE, Netherlands — The International Criminal Court issued an arrest warrant Wednesday for Sudanese President Omar al-Bashir on charges of war crimes and crimes against humanity in Darfur. He is the first sitting head of state the court has ordered arrested.
The three-judge panel said there was insufficient evidence to support charges of genocide.
March 4, 2009 at 11:20 pm
Treaties are honored when the two parties are
on equal level of power. Look at the Native
American treaties (American Indians) with the
White Setllers. They were not honored until the
Native Americans were driven out of their lands. Pack to live in reservations.
US and Russia have to honor their treaties. Because
both have the capabilities to blow each other
up from the face of the Earth.
March 5, 2009 at 1:20 am
technical legal question:
can they get a SC ruling overturned? i thought SC rulings are final?…
March 5, 2009 at 3:18 am
Ding,
______________________________________________________________
“The last sentence reinforces the continuing operation of the master principle. It assumes meaning only under the condition that the detention is under the authority of the Philippine authorities. The right to visit and material assistance on the part of the US personnel serving sentence holds no meaning if the detention were under the US authorities.” Prof. Magallona.
______________________________________________________________
On the contrary the provision is very meaningful. The right to visit and provide material assistance on the part of the US personnel to convict personnel serving sentence holds meaning if the detention agreed by U.S. and the Philippines was other than the detention already accessible to U.S. personnel.
Prof. Magalonna reading of the “master principle” is nowhere to be found in the cited section of the VFA, which the SC has already classified as a “mere executive agreement” or an implementing guideline of the 1951 Mutual Defense Pact Treaty between the U.S. and RP.
Section 10 is clear that the confinement or detention by the Philippine authorities of United States personnel shall be carried out in the facilities agreed on by appropriate Philippine and United States authorities.
The Kenny-Romulo executive note was clear that accused Lance Cpl. Smith should be detained at “Rowe Security Building inside the U.S. Embassy at Ermita, Manila and that this arrangement was agreed upon by both RP and U.S.
Inasmuch as the detention facility agreed upon by the parties to be inside the U.S. embassy, and therefore already accessible to U.S. authorities, the second sentence of Section 10 does not apply any longer, but it does not mean that such provision becomes superfluous. This provision contemplates a situation where by way of bargaining, the parties have agreed that Lance Cpl. Smith be detained at the Bilibid prison, in which case, U.S. personnel are free to visit and provide material assistance to accused Lance Cpl. Smith, and therefore the necessity for the second sentencen in Sec. 10 of the VFA.
As to the issue that U.S. treats the VFA as a mere executive agreement while RP treat it as a “treaty” is not determinative of the detention facilities for Cpl. Smith.
The U.S. determination of whether it is a treaty or as an executive agreement would be material only in determining whether Congress should approve and ratify it, if it is a treaty, or just to enroll it in the records of Congress, if it is an “executive agreement”. Whatever classification U.S. had ascribed to the VFA, would not change the factual situation that the parties have, and in fact, were already implementing the VFA.
Besides, the SCORP has also classified the VFA as an “executive agreement” or an implementing guideline of the 1951 MDP, and not a treaty.
In a simple contract principle, if the VFA is a treaty, and it has no legal effect because it was not approved and ratified by U.S. Congress, such defect can be raised only by the U.S. government and not by the Philippine government when the implementation of the treaty proves to be inimical to RP.
By analogy, if you contracted with a minor on items that are considered necessities or not, and you ended up with the shorter end of the stick, you cannot get out from the contract by pointing out that the contract was voidable on account of the minority of the other contracting party. The voidability of the conttract is available only to the minor and he can get out of the contract while you cannot.
This is what precisely what happened in this VFA. If we ended up with the shorter end of the stick, you have to stick with it.
If ever we want to get out of this one-sided VFA, our remedy is political, not judicial. The SCORP cannot direct the Executive branch to renegotiate with the U.S. for the terms of the VFA it consider most acceptable to the Republic.
The power to conduct foreign relation is a plenary power of the Executive. This power is beyond the authority of the SCORP to interfere. The manner by which this power is to be exercised cannot be controlled by the SCORP. Not every error in the exercise of executive power can be corrected by the SCORP. This error should be addressed by the Executive itself. The contrary submission that the SCORP can step in and direct how the executive exercise this power is a constitutional perversion in itself.
BTW, Prof. Magallona, having been enlisted by Atty. Ursua as “counsel” also for Nicole, was already speaking to protect the interest of a client, and therefore his objective view of the constitution could have been compromised.
March 5, 2009 at 3:49 am
Ding,
BTW, there is a rule in construction partial to interpreting every provision of the contract that gives it meaning rather than avoid it because it does not have any meaning.
My interpretation of the second sentence of Section 10 of the VFA that U.S. personnel can provide material assistance to U.S. accused of crimes contemplates a situation where the accused was detained at a facility not freely acessible to U.S. personnel or staff already.
March 5, 2009 at 5:17 am
jcc sir,
Than you for apparently taking take to read Prof. Magallona’s pieace.
Whenn I sought his permission to post it on line here at FV andin my home blog, my goal was precisely to allow us to understand the various facets in this question.
By the way , as I indicated above, Dean Magallona was “requested by Nicole, through her lawyer Evalyn Ursua, to join them…”
I need to check is he has acquiced to it.
Other sources are telling me the SCORP xould solicit the views of amicus curiae.
Will revert to you when I have firmer details.
Gabby D,
The SCORP may in revisiting this or other issues before it, though rarely, could very well be moved to reverse a prevision ruling. Supreme Courts do that.
March 5, 2009 at 5:35 am
Ding,
Face it, VFA is a political question. It is beyond SCoRP’s powers to change that. All the questions of Law have already been settled. Believe me, I would be on your side, if Truth and the People, were also, and not the demon of Useless Resentment. You have confounded the Rape of Nicole with the need for mutual defense of both our countries. You are looking for something that is not in the Law, but as Carlos Bulosan said, is in the heart.
March 5, 2009 at 6:11 am
Yes Manong.
Am ready to bow to the will when it does come. :)
“…You have confounded the Rape of Nicole with the need for mutual defense of both our countries. You are looking for something that is not in the Law,”
Human frailty. But never forget pountries, no matter how unequal, are made of flesh and blood human, who do get raped in more ways than one. Sodomized, even.
March 5, 2009 at 6:11 am
Countries I meant :)
March 5, 2009 at 6:59 am
Ding,
The passion is noted, though it clouds the reason. Read Azcuna, not Magallona. The only people raping Nicole now are those who are using her as a Battering Ram for a totally different cause. Their rape of her will never end.
March 5, 2009 at 7:28 am
Kuya,
Your passion is likewise noted. But is it really concern for Nicole.
Do you really, honestly feel THAT SHE IS DEVOD OF ANY POLITICAL AWARENESS ABOUT HOW SHE HAS BECOME EMBLEMATIC OF THE UNEQUAL RELATIONS BETWEEN HER COUNTRY AND DANIEL’S?
Is she being raped? Aren’t we all?
March 5, 2009 at 7:58 am
I don’t know about you Ding, but if my daughter were raped, I would first and last strangle the rapist, but after that I would not want Gabrielas hysterically ululating their heads off for the next twenty years about it saying everybody else has been raped because of it.
How many Filipinas and Filipinos after all do not share this tragic fate of Nicole and have instead found true happiness? Or met even more tragic fates? How many whores have gladly fed their starving children after sleeping with G.I. Joe or Manoy Pinoy the night before because they had no other choice?
But America is unconstitutionally raping the Philippines via Daniel Smith raping Nicole, WETHINKS this is a fairy tale for adults. Very young adults!
March 5, 2009 at 8:04 am
Really, DJB?
You’d put your own daughter in Nicole’s shoes and if Daniel was the malefactor you will just shrug your shoulder and not, as you deridingly put it, “ululate” your head?
“But America is unconstitutionally raping the Philippines via Daniel Smith raping Nicole, WETHINKS this is a fairy tale for adults. Very young adults!”
Have I nudged your prurient side? :)
March 5, 2009 at 8:23 am
Ding,
It is the way we handle the Nicole case that perpetrates an injustice. I would have approached the problem from purely settlement aspect and let the Akbayan/Gabriela/Lagman look for another victim as their “rallying cry”.
With all the media fanfare, the P50,000 moral damages and P50,000 actual damages awarded by the court which is less than a month salary of Mr. Smith, is too cheap a price for this continuing saga of “monumental” disgrace bestowed upon us by the white race.
Nicole would be much happier getting one million upfront as civil settlement and allow Mr. Smith to go free and the guy would be too much happy paying the one million because of the trade-off of possible jail time.
Nobody looks at the situation from Ms. Nicole’s perspective. Everone was looking at it from our sense of dignity and justice and Akbayan/Gabriela/Lagman’s bias, where the latter are not even victims in this case, but only obsessive kibitzers who think that they were violated more than Nicole was. :)
March 5, 2009 at 8:54 am
jcc,
To reiterate, L’ Affaire Daniel Smith is to me emblematic.
I’ll wait for the judicial process to be completed and will bow to whatever the final decision is.
After which I will, as a taxpaying Filipino with full political rights, “kibitz” about other ‘worthy’ concerns. :)
Agreed?
March 5, 2009 at 9:13 am
By the way, may I share this bit? :
Carlos P. Romulo:
I am a Filipino. . . I sprung from a hardy race – child of many generations removed of ancient Malayan pioneers. . .This is the land they sought and found. . .This land I received in trust from them and in trust will pass it to my children…
I am a Filipino. In my blood runs the immortal seed of heroes – seed that flowered down the centuries in deeds of courage and defiance. In my veins yet pulses the same hot blood that sent Lapulapu to battle against the alien foe, that drove Diego Silang and Dagohoy into rebellion against the foreign oppressor. That seed is immortal. It is the self-same seed that flowered in the heart of Jose Rizal that morning in Bagumbayan when a volley of shots put an end to all that was mortal of him and made his spirit deathless forever; the same that flowered in the hearts of Bonifacio in Balintawak, of Gregorio del Pilar at Tirad Pass, of Antonio Luna at Calumpit. The seed I bear within me is an immortal seed. It is the mark of my manhood, the symbol of dignity as a human being…
I am a Filipino, child of the marriage of the East and the West. The East, with its languor and mysticism, its passivity and endurance, was my mother, and my sire was the West that came thundering across the seas with the Cross and Sword and the Machine…
I am a Filipino, and this is my inheritance. What pledge shall I give that I may prove worthy of my inheritance? I shall give the pledge that has come ringing down the corridors of the centuries, and it shall be compounded of the joyous cries of my Malayan forebears when they first saw the contours of this land loom before their eyes, of the battle cries that have resounded in every field of combat from Mactan to Tirad pass, of the voices of my people when they sing: “Land of the Morning, Child of the sun returning… Ne’er shall invaders Trample thy sacred shore.”
(Excerpt from “I AM A FILIPINO” by Carlos P. Romulo, a true patriot).
March 5, 2009 at 9:28 am
Nice poetry.
But that’s all it is. Poetry.
Did these “Malay ancestors” of ours have the concept of “the Philippine Nation” in mind when they supposedly “sought and found[ed]” this land?
I wonder then. Look through the above and see how Romulo seems to be denying the Spanish component of our heritage. And yet we name said land after a Spanish king.
Ironic. :D
March 5, 2009 at 9:41 am
“Seems”
You are inferring and you certainly are entitled and even Roumulo, in his time, was derided for just being pro American.
But are any of us able to see the other heart and soul, of that a hint of them? :)
March 5, 2009 at 9:42 am
“other’s heart…”
March 5, 2009 at 10:29 am
Ding,
How many Filipinos have been beheaded in Saudi for murder, how many have had their hands cut off for thievery. In what sense might those persons’ crimes be considered EMBLEMATIC of the murderousness and thievery of Filipinos? What do Daniel and Nicole know of Romulo and Jose Maria Sison?
But let us admit it. Has it now not become inconceivable, politically and ideologically, that Daniel Smith might be acquitted on appeal. It is now the whole US RP relation on trial. If he is acquitted you would all be proven wrong who claim the relationship is unfair. It has become essential to your mental and intellectual integrity that he be found guilty, regardless of the needs of the law and justice.
On this basis alone, he has already been deprived of his rights under the Philippine Constitution. He can no longer get Justice here.
March 5, 2009 at 10:41 am
“Has it now not become inconceivable, politically and ideologically, that Daniel Smith might be acquitted on appeal. It is now the whole US RP relation on trial.”
Dean,
Now inconceivable. Remember that some time back I gad said I am ready to accept DSaniel’s conviction beinG reversed.
Hey even if his conviction is affirmed all the way to the SCORP I bet you he will be pardoned by GMA to get face time in D.C.
RP-US relations on trial> Nah. But marriage do benefit from counseling right?
Deheadings emblematic of thievery? Mebbe, but let’s wait to become an Islamic state. Who knows the next MoA-AD may yet give up the entire archipelago. Ang saya-saya di ba? :)
Hoke lang but are now a paralegal in Bencard’s East Coast digs? :)
March 5, 2009 at 11:08 am
Ding,
It is an insult to the new administration of President Barack Obama for you to suggest that an unjustified pardon of a rapist would meet with their approval and happiness and give GMA “face time” with them! I guess we may as well lynch Daniel Smith and string him up right now since you believe no matter what happens Justice will be obstructed to save the White Man.
With all due respect, I think you are all mixed up on this one, pare, Time to reboot and think things over.
March 5, 2009 at 11:16 am
Do I detect exasperation? nah, sabay tayo magreboot Kuya.
It’s not illegal to scenaruo-build.
And you think the Mafia-Government is below trying to manipulate Barack?
While I think he will see through such a stratagem, you can never really tell how, for either a tactical or strategic reason, the little girl just might get lucky.
Bilog ang mundo at maliwanag ang buwan.
BTW, bawal na magbitin ng isang tao patiwarik.
Done your reboot yet?
March 5, 2009 at 11:37 am
Me exasperated? You wish! Haha. Okay you can have the Last Word. I shall be happy with the Last Laugh.
March 5, 2009 at 12:19 pm
No worry, Kuya, sasabayan pa kita.
Being proven wrong is not a sad thing. It’s not about who pisses high or longer, it’s the quality of the piss, :) LOL