DOJ: Effects of VFA termination on EDCA, Mutual Defense Treaty have to be studied

MANILA, Philippines – Although quick to the draw to terminate the 20-year-old Visiting Forces Agremeent (VFA), the Department of Justice (DOJ) said a separate study is needed for its effects on other agreements with the US, including the overarching Mutual Defense Treaty.

"Possible effects on the Mutual Defense Treaty (MDT) and EDCA (Enhanced Defense Cooperation Agreement) may have to be studied separately by the Departnment of National Defense and Department of Foreign Affairs, but the DOJ will be ready to assist," Justice Secretary Menardo Guevarra told reporters in a message on Saturday, January 25.

Guevarra will submit on Monday, January 27, to President Rodrigo Duterte the DOJ's legal memorandum on the proper procedures to terminate the VFA.

From his end, Foreign Secretary Teodoro Locsin Jr said he would "start the process" of terminating the VFA.

That is only 4 days after Duterte announced to terminate the VFA as an outburst against the US' cancelation of visa of former police chief and now Senator Ronald "Bato" Dela Rosa. The visa cancelation is widely seen as an effect of the Global Magnitsky Act that imposes sanctions on human rights violators.

The VFA

The VFA was ratified by the Senate in 1999 as a reaffirmation of the obligations of the Philippines and US under the 1951 Mutual Defense Treaty (MDT).

The MDT is a commitment of the Philippines and the US  "to respond to any external armed attack on their territory, armed forces, public vessels, and aircraft," according to the Supreme Court decision Bayan vs Zamora.

As an offshoot of the MDT, the VFA provided that "from time to time elements of the United States armed forces may visit the Republic of the Philippines" for capacity building among others.

Under former president Benigno "Noynoy" Aquino III, the Philippine government passed the Enhanced Defense Cooperation Agreement (EDCA) which provided for increased US military presence in the Philippines. EDCA was an "adjustment in detail" in the implementation of both the MDT and the VFA, quoting from the government's previous court pleadings.

EDCA was passed without the concurrence of the Senate, prompting groups to file a petition before the Supreme Court to challenge its constitutionality.

In 2016, the Supreme Court voted 10-4-1 to declare EDCA constitutional as it held that it was an executive agreement that does not need the Senate's concurrence.

Guevarra's memo will venture into these legalities.

"We shall answer such questions as: is the VFA a treaty or an executive agreement? if it’s a treaty, is senate concurrence required for termination?" Guevarra said.

"Who will give the notice of termination? Is it necessary to state any ground for termination?" Guevarra added.

Guevarra said the memorandum will "deal with the procedure for termination only, not the wisdom of the executive action."

"Wisdom refers to the pros and cons of the termination. That's political, not legal. The DOJ will deal only on the legal way to terminate the VFA," said Guevarra.

Past SC decisions

Progressive groups have filed petitions to junk the VFA before on grounds that it violates Philippine sovereignty. But the Supreme Court in 2000, through Bayan vs Zamora, upheld the VFA saying that there was no grave abuse of discretion on the part of the president and the Senate.

"In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as the final arbiter of legal controversies and staunch sentinel of the rights of the people - is then without power to conduct an incursion and meddle with such affairs purely executive and legislative in character and nature," said the Supreme Court in that case. 

In upholding the constitutionality of EDCA, the Supreme Court recognized the "fears" of the return of US bases out of  "desire for self-determination, nationalism, and above all a commitment to ensure the independence of the Philippine Republic from any foreign domination."

"Mere fears, however, cannot curtail the exercise by the President of the Philippines of his Constitutional prerogatives in respect of foreign affairs. They cannot cripple him when he deems that additional security measures are made necessary by the times," said the SC in the January 2016 decision in Saguisag vs Executive Secretary.  Rappler.com

 

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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