February 13, 2009

Surrender of national sovereignty

I strongly dissented in the case of Bayan v. Zamora proffering the view that the VFA falls short of the requirement set by … the 1987 Constitution stating that the agreement allowing the presence of foreign military troops in the Philippines must be “recognized as a treaty by the other contracting state.” The circumstances present in the case at bar and recent case law in the United States’ policy on treaty enforcement further expose the anomalous asymmetry in the legal treatment of the VFA… This slur on our sovereignty cannot continue, especially if we are the ones perpetuating it. - Justice Reynato S. Puno

At first glance, the latest Supreme Court (SC) decision on the petitions of Suzette Nicolas, Bayan et al and Salonga et al appears to be a welcome, if unexpected assertion of Philippine sovereignty. The SC ruled that the transfer of convicted rapist Cpl. Daniel Smith to the US embassy from a Philippine jail, violated the terms of the RP-US Visiting Forces Agreement (VFA).

But on closer scrutiny, the SC decision continues to undermine, if not surrender, Philippine sovereignty by once more affirming that the VFA is constitutional. It gives the US greater legal license to station more troops in the country and increase the scope of its military intervention while claiming legal immunity for criminal acts of its forces on Philippine soil.

Further watering down the impact of the decision is the directive of the Court to the Foreign Affairs Secretary to “negotiate“ with US government representatives “pending which the status quo shall be maintained...” In other words, the Philippine and US governments can both drag their feet transferring Cpl Smith back to a Philippine jail while they take their time agreeing as to what detention facility is most “appropriate”. Meanwhile Cpl Smith gets to stay put in his comfortable quarters surrounded by supportive fellow Americans.

The SC decision, penned by Justice Adolfo Azcuña and assented to by nine justices against four dissenters, flies in the face of a 25 March 2008 ruling by the US Supreme Court, in Medellin v Texas that “a treaty, even if ratified by the United States Senate, is not enforceable as domestic federal law in the US, unless the US Congress enacts the implementing legislation, or the treaty by its terms is self-executory and ratified by the US Senate as such.”

In a separate dissenting opinion, Justice Antonio Carpio said, “Under Medellin, the VFA is indisputably not enforceable as domestic federal law in the United States. On the other hand, since the Philippine Senate ratified the VFA, the VFA constitutes domestic law in the Philippines. This unequal legal status of the VFA violates Section 25, Article XVIII of the Philippine Constitution, which specifically requires that a treaty involving the presence of foreign troops in the Philippines must be equally binding on the Philippines and on the other contracting State.” In the light of the Medellin ruling, any assertion of sovereignty by the Philippines is rendered legally in doubt and is certain to be an uphill battle.

The US can reiterate its interpretation that US custody over Cpl Smith extends even up to his current status of being convicted because the applicable VFA provision is Section 6 and not Section 10 as the SC held. More ominously, the US can invoke the Medellin decision in declaring that the VFA is not legally binding on the US in the Smith case since it has not been ratified by the US Senate much less has implementing legislation been passed by the US Congress.

Ergo the Philippine Supreme Court’s decision is meaningless unless, the Obama administration is convinced that it needs to maintain the charade that Philippine sovereignty is not derogated by the VFA. To save face for the Philippine government, and in its own interest, the US could appear to comply with the SC ruling and agree to Philippine custody, while insisting on the specific facility for Smith that it will agree to. (In this regard, Smith’s lawyer has a novel idea: the US can carve up a piece of the US embassy property and revert it to the Philippines as part of its national territory while retaining actual control of that piece of property.)

Given the arrant disdain by the sole Superpower for international law and the US government’s need to demonstrate to its soldiers that it can shield them from the long arm of another country’s national law while pursuing its military adventures overseas, it is likely that the US will holds its ground. It will try to figure out how it can escape compliance with the SC ruling and still manage the political fallout that can ensue.

The upcoming Balikatan war “exercises” will certainly be used as leverage by the US government in securing favorable terms for Smith. In the same way that the US cancelled earlier scheduled Balikatan “exercises” until it could get favorable action on Smith’s detention from the Arroyo government, the Philippine government needs to be pressured to do no less.

Justices Puno, Carpio, Martinez and Morales correctly saw the fatal legal flaw of the VFA is not just in Article V regarding criminal jurisdiction over erring US troops. The entire Agreement is a violation of Section 25, Article XVIII of the Philippine Constitution that governs the constitutionality of the VFA.

To quote Section 25 in full: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. “ (Emphasis supplied.)

But beyond legal arguments and procedures, the political reality is that the Arroyo regime has shown itself incapable of standing up to the US on the issue of Cpl Smith’s detention and generally, just how subservient it is to the US, especially on foreign policy matters such as the US war of terror and US troops presence in the Philippines.

Thus the Filipino people themselves must press on with their opposition to the VFA, US permanent presence in the country and specifically, the RP-US military “exercises” being held in different parts of the country, that grow more alarmingly intrusive each year. #


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