Supreme Court upholds VFA

Contentious defense pact between RP, US constitutional

THE Supreme Court (SC) affirmed with finality on Tuesday the constitutionality of the controversial RP-US Visiting Forces Agreement (VFA), allowing American and Filipino soldiers to conduct joint military exercises on Philippine soil.

The Court en banc, in a two-page resolution, junked a motion for reconsideration filed by lawyer Evalyn Ursua, the former counsel of Subic rape victim “Nicole,” former Senators Jovito Salonga and Wigberto Tañada, Bagong Alyansang Makabayan, Bayan Muna, Gabriela Women’s Party and the Public Interest Law Center.

It said that the petitioners failed to raise new arguments that would warrant the reversal of its February 11, 2009 ruling.

In that ruling, the High Court by a 9-4 vote said that “the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States,” and “the fact that [it] was not submitted for advice and consent of the United States does not detract from its status as a binding international agreement or treaty recognized by the said State.”

It cited Section 25, Article XVII of the 1987 Constitution, which 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 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.”

“The VFA, which is the instrument agreement upon to provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US Mutual Defense Treaty,” the Supreme Court added.

On February 26, 2009, the petitioners, in a 45-page joint motion for reconsideration, questioned the validity of the VFA, citing the existence of a supposedly secret “VFA-II” complementary agreement that gave US troops preferential treatment over their Filipino counterparts.

VFA-II issue raised
The VFA-II was exposed by Sen. Joker Arroyo and was signed by then Foreign Affairs Secretary Domingo Siazon Jr. and then US envoy Thomas Hubbard.

Article VIII on “Criminal Jurisdiction” under VFA-II gives the US government custody over accused Philippine military personnel visiting the US.

Consistently, Article IX of VFA-II on Confinement and Visitation states: “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.”

“How vastly unfair the VFA is can be discerned from a comparison of its provisions with those in the ‘Agreement between the Government of the United States and the Government of the Republic of the Philippines regarding the treatment of Republic of the Philippines personnel visiting the United States of America’ or popularly known as VFA II,” the petitioners said.

They argued that the VFA is unconstitutional and void because an integral part of it, the VFA-II, was not included in the Senate deliberations and resolutions of concurrence.

“The powers, rights and privileges given to the US under the VFA and VFA-II, in stark contrast to the lack thereof on the part of the Philippines under both agreements, would have stopped the Philippine Senate from concurring in the VFA had they been informed of VFA-II. For VFA-II aggravates the lack of reciprocity and mutuality in the VFA,” the petitioners said.

Furthermore, they claimed that the High Court’s February 11 decision contains errors of facts that must be corrected. –WILLIAM B. DEPASUPIL Reporter, Manila Times