VFA must embody reciprocity, respect

CONSUELO: Press Secretary Cerge Remonde said Malacañang would listen to all arguments for and against the RP-US Visiting Forces Agreement, which is being reexamined amid reports that Americans see military action in Mindanao.

Pretending to listen is an old trick, played as consuelo de bobo for those who love to hear their own voices. After lending a deaf ear, the Palace will just go ahead and do what it and its American accomplices want.

Still, even just for the exercise, we shout the following points to the deaf:

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RATIFICATION: Our Senate ratified the VFA, reflecting the importance the chamber attached to a formal treaty with a co-equal. But the US Senate found no need to ratify it, relegating the document to the category of a mere executive agreement.

Note that Section 25 of Article XVIII (Transitory Provisions) of our Constitution provides that “… foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State.” (Emphasis mine - fdp)

Despite that constitutional requirement, the US did not bother to give the VFA the importance of a treaty, like we did. The White House did not bother to submit it to the Senate for ratification.

Worse, the Philippine leadership pretended not to have been offended by the insult and violation of the Constitution.

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VFA NOT A TREATY: While a treaty and an executive agreement are both binding upon the signatory-countries, they are not exactly the same.

Treaties are international agreements that bind the US only after two thirds of the US Senate has given its advice and consent under Article II, section 2, Clause 2 of the US Constitution. An example is the RP-US Mutual Defense Treaty of 1951.

On the other hand, other international agreements — often referred to as executive agreements — are brought into force on a constitutional basis other than with the advice and consent of the US Senate. The VFA is an example.

The White House merely sent Ambassador Thomas C. Hubbard to sign it on Feb. 10, 1998. Our Foreign Secretary Domingo L. Siazon Jr. signed for the Philippines.

Under its Article IX, the VFA took effect “on the date on which the parties have notified each other in writing through the diplomatic channel that they have completed their constitutional requirements for entry into force.” That was it and nothing more.

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VALUE-ADDED: Senate ratification of a treaty is a real and psychological value-added.

Ratification not only binds the legislature as regards the treaty’s being brought to force, but also commits it to look with favor on subsequent congressional action that may be needed to carry out treaty provisions.

In an executive agreement, there is a procedural gap between the Executive that signed it and the Legislative body whose cooperation and consent may be needed to translate into action a provision, such as the funding of activities under the agreement.

Under an executive agreement, the Senate’s ready acquiescence cannot be presumed.

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RECIPROCITY: Another value item is reciprocity, which must be embodied in the letter and the spirit, as well as in the implementation, of the agreement.

Reciprocity is fairness. It means that what we grant the Americans they should also grant us. After all, our two countries are supposed to be allies on equal footing.

Harking back to the recent rape case of visiting American serviceman Daniel Smith, who was snatched from the Makati jail and transferred to a US embassy facility, can we execute a similar rescue of a Filipino soldier charged with rape in the US?

In reviewing the VFA, we should be very particular about reciprocity. Whatever rights and privileges we grant US military and civilian personnel visiting under the VFA, they should also grant their Filipino counterparts visiting the US.

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CRIME PROTOCOL: On the thorny issue of criminal jurisdiction, the same principle of reciprocity should strictly apply.

If an American visiting under the VFA commits an act against a Filipino that is a crime under Philippine laws, the act should immediately fall under the primary and exclusive jurisdiction of the Philippine system, and his commander or supervisor should surrender him to local authorities without delay. He must be tried in Philippine courts, detained in a Philippine jail if not granted bail, and must serve sentence in a Philippine prison upon conviction.

Why so? Because that is exactly what will happen to a Filipino soldier who runs afoul of the law in the US.

Reciprocity can also be cited (aside from Section 25 of Article XVIII of the Constitution) for our insisting that the VFA be ratified by the US as a treaty — in the same manner that we did.

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VISITING, NOT WARRING: Secretary Remonde cited the importance of the VFA in addressing terrorism and other security concerns. “The waging of war is already global,” he reminded us.

Remonde may want to read the VFA and learn that it is not a security or defense pact. The agreement merely defines the status of visiting US forces — how they are to conduct themselves and how we are to treat them.

Although the preamble of the VFA cites our historic ties and our mutual defense arrangements, the agreement is not about waging war or fighting enemies of the state.

The operative word in the title and in the body of that agreement is “VISITING.”

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