Babe's Eye View article

I don’t know where we got this “urong-sulong” syndrome where we make a deal and when it doesn’t work, we cancel it. The same thing seems to be happening right now with the Visiting Forces Agreement. Let’s go back to when we signed it during the administration of President Joseph Estrada. Remember, there were 18 senators who believed the treaty was beneficial to the Philippines especially since we were suffering a lot of setbacks particularly in Mindanao at the height of the Abu Sayyaf’s kidnappings and terrorist rampage.

The senators who signed it were the late Marcelo Fernan, Blas Ople, Robert Barbers and Rene Cayetano, Franklin Drilon, Rodolfo Biazon, Miriam Santiago, Kit Tatad, Tessie Oreta, Jun Magsaysay, Robert Jaworski, Tito Sotto, Gringo Honasan, Johnny Flavier, John Osmeña, Ramon Revilla, Nikki Coseteng and Juan Ponce Enrile.

Those who resisted and perhaps are now feeling vindicated when they pointed out that the VFA infringes on the sovereignty of the Philippines were Loren Legarda, nationalist Tito Guingona, and of course Nene Pimentel and Serge Osmeña. Maybe they are right. But be that as it may, the VFA is a document that is binding for both the Philippines and the United States.

Anti-VFA groups argue that the treaty is unconstitutional and was not ratified by the United States. But under the Case-Zablocki Act—enacted in 1972 to ensure that all international agreements are done in consultation with the US Secretary of State—there are certain agreements that take the force of a treaty even without formal US Senate ratification if they are submitted within 60 days to the US Congress after their ratification (by the other contracting state). Apparently, there are a lot of similar agreements entered into by the US all over the world.

And one of the reasons why the United States has always been against the International Criminal Court is precisely because of the fear that US military personnel might be subjected to politically-motivated cases. Not that we’re saying Daniel Smith is blameless. But the fact of the matter is, US personnel are always a prime target especially in politically-charged issues.

The Supreme Court upheld the constitutionality of the VFA when it ruled in the Bayan vs. Zamora case in 2000, and in the recent ruling of recently retired associate justice Adolf Azcuna, citing a transitory provision in the 1987 Constitution saying that after the expiration of the 1991 bases agreement between the United States and the Philippines, no foreign troops, bases or facilities may be allowed “except under a treaty duly concurred in by the Senate… and recognized as a treaty by the other contracting State.”

From a layman’s point of view, the SC ruling is rather vague on the matter of renegotiating the custody agreement between US Ambassador Kristie Kenney and DFA Secretary Alberto Romulo on the grounds that it was inconsistent with the VFA.

But we have a Catch-22 situation here because an agreement—whether it was done in secret or not—becomes binding when signed by the authorized representatives of both countries. And even if we decide to cancel the VFA, it will take at least six months, or until the expiration of 180 days from the date on which either party gives notice in writing that it wants to terminate the agreement. Besides, even renegotiating the treaty will not make the terms retroactive—which means to say that the case of Daniel Smith will be treated under the provisions of the old VFA signed in 1998.

The bottom line is, we can’t simply cancel an international agreement just because we belatedly realize that the terms are not so advantageous to us after all. Like any kind of game, whether it’s basketball or boxing, changing the rules midstream just because the team is losing is simply not done. If we are unhappy with the way things have turned out especially with the Daniel Smith case, what are we going to do—invade the US Embassy?

In any controversy, there are always opposing views, in this case from Senator Joker Arroyo and Senate President Juan Ponce Enrile. Perhaps Joker is correct that the treaty is lopsided and rife with “inequalities.” But Juan Ponce Enrile pragmatically points out that we stand to lose even more if we unilaterally scrap the VFA. Enrile, a seasoned politician who’s also a brilliant lawyer, is certainly not a great fan of the United States. He has not set foot in that country for almost 30 years and probably doesn’t plan to do so in the future, yet he realizes that abrogating the VFA would undermine the security of the country in many aspects especially on the problem of terrorism in Mindanao. It may sound like a slap on the face, but again Enrile has a point when he says “we are not the center of the world” and should be careful with our dealings with other countries.

Russian analysts who have been watching US-Philippine relations over the years have intimated to us that the US will be forced to flex its muscles on this VFA controversy. Which again will be unfortunate for the Philippines because the fact of the matter is, the Americans are so well-entrenched in this country in almost every aspect—politically, militarily and even economically—that it will be very difficult to unilaterally extricate ourselves from the VFA.

At the end of the day, one of the things we have to learn from any kind of mistake—whether we call this view colonial mentality or otherwise—is that international agreements have major consequences. Once you make a deal, you have to stick to it because this is not Kris Aquino’s game of “deal or no deal.”