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The Constitutionality of the VFA Dissected

March 4, 2009

vfa-smith-constitution-montage

The controversial RP-US Visiting Forces Agreement is unconstitutional, according to a noted expert in constitutional and international law.

dean-magallona2Former 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.

https://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,

I“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 (the Azcuna decision) 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, DCean 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 decision overturned and for the VFA to be formally declared  unconstitutional.

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