The proposed Visiting Forces Agreement is such an emotional issue for Filipinos that as a lawyer, I have often yielded to the temptation to oppose it on the whimsical ground that what it covers is not a visit, not forces, and not an agreement. It is not a visit, because the length of stay is undefined. It is not confined to forces, because the forces are allowed to bring both military and residential equipment. It is not an agreement, because while the United States government considers it a mere executive agreement, the Philippine government considers it a treaty.This three-pronged description of the VFA might be whimsical, but I am afraid it is also accurate. And I truly fear that as a nation, the Filipinos are so caught up in the whimsical that we have failed to focus on the constitutional issue. Hence, as a senator of the republic, I find it necessary to go back to the basics, and to remind the national constituency that all great political issues eventually resolve themselves into legal issues. And since the Constitution is the fundamental and paramount law of the land, all debates on great national policy issues must begin and end with the Philippine Constitution.
Any controversial national debate on the future of our country must begin with the question: Is it legal ? Only then can we proceed to the question: Is it moral? This two-step approach is what we mean when we say that our government operates under a rule of law. Democracy is the rule of the majority; the rule of the majority is found in the Constitution, which is a legal document; therefore, the question of legality, which so often resolves itself into a question of constitutionality, is both fundamental and paramount on any given issue.
The question of constitutionality itself consists of two parts: the question of procedure, and the question of substance. In grappling with any national policy issue, the proper sequence is first to ask: What is the procedure prescribed by the Constitution? And then we can proceed to ask: What is the substance allowed by the Constitution? In other words, the question of constitutionality consists of both the procedural and the substantive aspects.
On the VFA question, the procedural aspect consists of the minimum requirements laid down by the Constitution for the ratification of a treaty or international agreement. The substantial aspect consists of the basic concerns of necessity, beneficialness, and practicability. In other words, when we put this debate into layman’s terms, the VFA question raises two issues: the procedural issue of constitutionality; and the substantive issue of policy.
The procedural issue is a threshold or prejudicial issue, meaning that unless we resolve the procedural issue, it is pointless to discuss the substantive issue. Let us put the horse before the cart. Let us follow the proper order of priorities. Before all else, let us first answer the question: What procedure does the Constitution provide for the approval of the VFA?
The answer is clear, unequivocal, and straightforward: It is found in Article 18, entitled “Transitory Provisions,” and provides:
Section 25. 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 added.)
Notice that this provision is found under Article 18 on Transitory Provisions, rather than under Article 2 on Declaration of Principles and State Policies. It is under Article 2 that we find the following provisions:
Sec. 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.
Sec. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.
The Records of the 1986 Constitutional Commission show that there was lengthy debate on where the VFA provision should be located: under Transitory Provisions, or under Principles and State Policies. Finally, the commissioners decided to locate the “national sovereignty” provision and the “anti-nuclear weapons” provision under State Policies, while locating the VFA provision under Transitory Provisions. The reason is that the “sovereignty” and “anti-nuclear” provisions apply to all foreign states, while the VFA provision applies specifically to the United States, because it was only with the US that the Philippines had a subsisting Military Bases Agreement at the time of the revision of the Constitution.
In other words, the contemplation of the commissioners was that after the promulgation of the Constitution, the Philippines would no longer enter into any military bases agreement with any other state,* because of the official state policy of an independent foreign policy, national sovereignty, and territorial integrity. In the contemplation of the commissioners, the only exception would be made in favor of the US, for the reason that at the time of the promulgation of the Constitution, the RP-US Military Bases Agreement was still subsisting, although thereafter it expired in 1991. This is the reason why the VFA provision begins with the clause: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of American concerning Military Bases . . . .”
Now I come to the gravamen of this privilege speech. Sec. 25, after referring to the RP-US Military Bases Agreement, provides: “foreign military bases, troops, or facilities shall not be allowed in the Philippines, except . . .” (Emphasis added.) Thus, the general rule is that foreign military presence shall not be allowed. To allow foreign military presence is the exception. Following the ordinary rule of statutory construction, in case of any doubt on how to interpret this provision, the doubt must be resolved
against foreign military presence.Section 25 then proceeds to the very crux of the matter. It prohibits foreign military presence, except under two conditions:
1. Under a treaty duly concurred in by the Senate, and
2. Recognized as a treaty by the other contracting State, i.e., the United States.Thus, at this initial stage of the ratification process, we cannot even begin to consider the national policy issues involved, such as: national or regional military security, the social costs of foreign military presence, or the cost in lost opportunities. The Constitution prohibits us from dissipating our national resources on these policy issues at this stage. For at the threshold stage, the Constitution requires us to answer two questions, and two questions alone:
1. Is the VFA a treaty to which the Senate has to duly concur? and
2. Is the VFA recognized as a treaty by the United States?To both these questions, the Constitution requires that the answer must be in the affirmative, before our government can proceed any further. Therefore, let us proceed to answer them:
1. Is the VFA a treaty to which the Senate has to duly concur? Answer: Yes, on the basis that Malacañang has officially requested this Senate for our concurrence.
2. Is the VFA recognized by the American government as a treaty, i.e., an international agreement entered into by the US President “by and with the advice and consent of the Senate”?* Answer: No, on the basis that US embassy officials have reportedly said that in their view, the VFA is a mere executive agreement, which does not need the advice and consent of the US Senate.The need for the advice and consent of the US Senate is textually demonstrable in the Philippine Constitution, not only by Sec. 25, but also by the Records of the 1986 Constitutional Commission. The Records show that the debate on Sec. 25 was prolonged and intermittent, because the commissioners were sensitized to the fact that the original RP-US Military Bases Agreement was considered as a treaty by the Philippines, but at the same time it was considered as a mere executive agreement by the United States.
In fact, certain commissioners even attempted to raise the issue that the original Military Bases Agreement may have been invalid on that score, in addition to the tacit international law principle of rebus sic stantibus. The argument was that the MBA ceased to be obligatory, as soon as the Philippines became legally and factually independent of the United States. Under this argument, Philippine independence was a substantial change in the state of facts and conditions, under which the MBA was founded. On this peripheral point, I will limit myself to the comment that in the hierarchy of international judicial values, the doctrine of rebus sic stantibus is inferior to the doctrine of pacta sunt servanda, meaning that treaty obligations must be observed. This is my way of saying that the validity of the original MBA is now a moot point.
The most important question at this stage of the Senate process of ratification is the meaning of the clause: “recognized as a treaty by the other Contracting State.” This is a prejudicial question, because if it means what I think it means, then the Senate has a duty to stop the process at this early stage, and devote our efforts to the pursuit of a legally viable interpretation of Section 25.
For me, this is the threshold, irreducible minimum of legal and political debate on the VFA issue. What is the meaning of this clause? I submit that we must resolve the question now, rather than wasting national resources by holding public hearings that might only serve to muddy the waters without enlightening the voters. And we want to prevent an even worst case scenario, where the Senate ratifies the treaty, Malacañang moves to implement it, and a taxpayer goes to the Supreme Court and obtains a judgment that the VFA is void ab initio, because it has never been recognized as a treaty by the US.
No such case has been filed at this time, because the facts are not yet ripe for adjudication. But do we need to wait and be conceivably reversed by the judicial branch? We are the legislative branch; we must discharge the duty of anticipating the great constitutional issues that might be ignited by our official functions.
The meaning of this pivotal clause in Section 25 can only be finally settled by the Supreme Court. But we want to avoid litigation, for prevention is better than cure. Thus, at the moment we have to rely on the Records of the 1986 Constitutional Commission. What the commissioners had to say is persuasive, not authoritative. After all, a constitution is written for ages to come, and therefore the opinion of one or a few commissioners would not serve to bind succeeding generations. But those opinions are persuasive, and at least enlightening.
This is what the Record contains:*
FR. BERNAS. Third, on the last phrase “AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING NATION,” we enter into a treaty and we want the other contracting party to respect that document as a document possessing force in the same way that we respect it. The present situation we have is that the bases agreement is a treaty as far as we are concerned, but it is only an executive agreement as far as the United States is concerned, because the treaty process was never completed in the United States because the agreement was not ratified by the Senate.
x x x And third, the requirement that it be recognized as a treaty by the other contracting nation places us on the same level as any other contracting party.
(At p. 774)_______________MR. SUAREZ. x x x The other point is that the proposal requires recognition of this treaty by the other contracting nation. How would that recognition be expressed by that other contracting nation? That is in accordance with their constitutional or legislative process, I assume.
FR. BERNAS. As Commissioner Romulo indicated, since this certainly would refer only to the United States, because it is only the United States that would have the possibility of being allowed to have treaties here, then we would have to require that the Senate of the United States concur in the treaty because under American constitutional law, there must be concurrence on the part of the Senate of the United States to conclude treaties.
x x x
FR. BERNAS. When I say that the other contracting state must recognize it as a treaty, by that I mean it must perform all the acts required for that agreement to reach the status of a treaty under their jurisdiction.
(At page 781)
FR. BERNAS. x x x when the executive department enters into negotiations with the other contracting nation or contracting state, we would have to say that under our law for this purpose, these are the requirements. So they would have to be prepared to accept that. Hence, even before our people could ratify it, the other party could ratify it ahead, but for as long as our people have not ratified it, it does not bind us. Similarly, our people could ratify it ahead of the United States Senate, for example, but for as long as it is not accepted by the United State Senate, it does not bind us.
(At page 782)
If I were asked to name three experts in constitutional law, I would say in alphabetical order: Fr. Joaquin Bernas, former Chief Justice Enrique Fernando, and former Senator Arturo Tolentino. I would similarly identify our experts in international law, in alphabetical order, as former Court of Appeals Justice Jorge Coquia, former Supreme Court Justice Florentino Feliciano, and UP Dean Merlin Magallona. The least the Senate can do is to ask the experts for their opinion on this threshold legal point.
When all is said and done, jurisprudence and tradition teaches us that foreign policy is the domain of the Chief Executive. But it is not his exclusive domain. The constitutional contemplation is for this Senate to concur with the President, before he embarks on an international obligation. In turn, the power to concur implies a corresponding degree of responsibility. And I submit that a sober sense of responsibility on the part of this Senate dictates that before proceeding any further, we must first resolve the issue of obtaining from the US government a statement of intention, to the effect that it is willing to recognize the proposed VFA as a treaty. How this recognition of treaty status shall be extended is, I believe, a matter for American municipal law to resolve.
For this purpose, I move that this speech shall be referred to our committees on foreign relations and on defense, and as well to the secretary of foreign affairs, with the respects of the Senate.
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The Isulong Team: Isulong SEOPh, Isulong Seoph by Benj, Pinoy Isulong by Seoph Martinez and Useless Isulong