A People’s Initiative for the VFA HINDSIGHT
F. Sionil Jose (The Philippine Star) - March 9, 2020 - 12:00am

The President’s abrogation of the VFA (Visiting Forces Agreement) with the United States is a disaster. It will mean the end of military assistance without which the Philippines is defenseless in the face of Chinese aggression. Filipinos must now act to prevent this catastrophe. With a people’s initiative as provided for in our Constitution, all registered voters can petition Congress to enact a law that will preserve the VFA and our treaties with the United States. All we need to do is affix our signatures to that petition.

I endorse ex-Justice Antonio Carpio’s concept on what is to be done. His preface on the President’s action is very enlightening.

1. The President negotiates and signs a treaty or international agreement (treaty) with a foreign state.  However, the Senate must ratify the treaty by 2/3 vote before it takes effect and becomes valid.  This is the requirement of the Constitution.

2. The Constitution does not prescribe how laws or treaties are repealed.  The Civil Code, however, prescribes that laws shall be repealed only by subsequent laws, expressly or by necessary implication.  The Civil Code is silent on how treaties are repealed.

3. The Supreme Court has repeatedly ruled that laws are repealed only by subsequent laws.  However, no case has been decided by the Supreme Court specifically on the termination of a treaty by the President acting alone.

4. The Supreme Court has ruled that a treaty can repeal a prior law, and a subsequent law can repeal a prior treaty.  In effect, a treaty has the same status as a law.  The Supreme Court has declared that once a treaty is ratified it forms part of the law of the land.

5. In March 2017, the President directed the filing of the notice of withdrawal from the International Criminal Court (ICC), in effect terminating one year later the Philippines’ accession to the Rome Statute, the multilateral treaty that created the ICC.  The Senate, while it concurred in our accession to the Rome Statute, neither approved nor disapproved the President’s withdrawal from the Rome Statute.

6. After the President filed the withdrawal notice from the ICC, the Senate added, starting January 2018, a unique provision to every treaty subsequently ratified by the Senate. The provision states that the President of the Philippines may, with the concurrence of two-thirds of all the members of the Senate, withdraw from the treaty.

7. However, all treaties concurred by the Senate prior to January 2018 do not carry this provision requiring Senate concurrence for any withdrawal or termination of the treaty.  Taking advantage of the silence in the law, the President may believe he can withdraw from any treaty ratified by the Senate prior to January 2018. Two such treaties are the Visiting Forces Agreement and the Mutual Defense Treaty with the US.

8. This gap in the law can be plugged by a People’s Initiative enacting a law that will require Senate concurrence to any withdrawal or termination of a treaty entered into prior to January 2018. 

9. The Constitution mandates that “Congress shall xxx provide for a system of initiative and referendum xxx whereby the people can directly propose and enact laws.”  An initiative must be signed by at least 10 percent of the all the registered voters nationwide and 3 percent of the registered voters in each legislative district.

10.  Under RA No. 6735, the Initiative and Referendum Act, the petition to be signed by the people shall contain the text of the law to be enacted, and the reason for its enactment.

11. The text of the law to be enacted shall state: “The President of the Philippines may withdraw from, or terminate, a ratified treaty or international agreement provided that two-thirds of all the members of the Senate shall concur to such withdrawal or termination.  This law shall apply retroactively to all existing treaties and international agreements entered into before the effectivity of this law, and prospectively to all treaties and international agreements entered into after the effectivity of this law.”

Filipinos have very little to say in the formation of Philippine foreign policy. This is laid down by the country’s highest officials, by the President in particular. But what happens if the country’s leaders distort that foreign policy to suit their private agendas or gild their egos?

Way back in the 1980s, an American diplomat told me to look at the map to understand why they are here. In the 18th century of course, when the American empire was birthing, they looked towards us as the gateway to China, to its vast market potential, “for the oil lamps” of that vast country. After all in the glorious era of the galleons, it was Manila from where Chinese products were shipped to the markets in the west.

The United States needs us – we need America, too, and especially its economic and military assistance. We need alliances with all the countries in the region, Japan, South Korea, India, and most of all, members of ASEAN countries who share the same apprehension towards China that has laid claim to the entire South China Sea.

There was a time I was opposed to the American bases in the Philippines. I thought that they perpetuated our dependence on the United States and, more than this, continued the teacher pupil relationship with America and inhibited our development.

But America did not hinder our development. We did that ourselves with our lack of vision, industry, the wrong economic programs and, above all, the dismal absence of patriotism.

Taiwan, South Korea, and most of all Japan, progressed with the American defense umbrella freeing them from having to spend billions for their defense. In fact, Japan PAYS the United States for the American bases there. If the American bases were still here, would the Chinese have militarized the islands within our territory? Can we stop them now if China decided to build a base at Panatag shoal right at our doorstep?

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