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SC: VFA constitutional, US soldiers can stay on RP soil


(UPDATE 5 - 6:20 p.m.) The Supreme Court on Tuesday affirmed the constitutionality of the Visiting Forces Agreement (VFA) between the Philippines and the United States, allowing American soldiers to temporarily stay on local soil and help train their Filipino counterparts. Critics of the pact led by former Senate President Jovito Salonga had not presented any new arguments in their motion for reconsideration, the full court said in a two-page resolution. “Acting on the joint motions for reconsideration filed by [the] petitioners, as well as the aforementioned supplement to the [motion], the court resolved to deny with finality the [motion for reconsideration] as no substantial arguments [had been] presented to warrant the reversal of the questioned decision," the court ruled. The Salonga motion On February 11 last year, the Supreme Court had issued an earlier decision affirming the constitutionality of the VFA and declaring it as a "valid and binding" agreement. At that time, the court said the presence of foreign military personnel on Philippine soil was merely the "instrument" agreed upon by the two governments to give way to joint military exercises in the country. Two weeks later, on February 26, Salonga’s group asked the SC to reverse its February 11 ruling. In its motion for reconsideration, the group “argued that the US soldiers are circumventing the Constitution as well as the sovereignty of the Philippines by visiting the country under the pretext of conducting training exercises, but are actually setting up military positions under long-term plans." Apart from Salonga, the other petitioners included Evalyn Ursua, the lawyer of alleged rape victim Suzette Nicolas, and lawyer Neri Colmenares representing militant groups Bagong Alyansang Makabayan (Bayan) and Gabriela.
A policeman escorts US Marine Lance Cpl. Daniel Smith in 2006 after he was found guilty of raping Nicolas in Subic. GMANews.TV File Photo
Named respondents in the suit were US Marine Lance Cpl. Daniel Smith, President Arroyo, Executive Secretary Eduardo Ermita, Foreign Affairs Secretary Alberto Romulo, then Justice Secretary Raul Gonzalez, Interior Secretary Ronaldo Puno, and then Chief Presidential Legal Counsel Sergio Apostol. The petitioners filed the motion following reports that some 600 elite US troops had been overstaying in Mindanao and participating in combat operations with their Filipino counterparts. In a six-page reply to the motion for reconsideration, Assistant Solicitor General Luis Simon however said that the constitutionality of the VFA has been deemed "final and valid" when the Court of Appeals in April 2009 acquitted Smith of raping Nicolas in November 2005. Smith flew out of the Philippines less than 24 hours after the CA ruling was announced. Smith, a participant in the 2005 Balikatan exercises under the auspices of the VFA, was convicted by the Makati Regional Trial Court of raping a Filipina inside the Subic Bay Freeport on Nov. 1, 2005. But in a sworn statement submitted to the Court of Appeals in March 12, 2009, Nicolas, whose identity was still being hidden under the name "Nicole" at that time, recanted her earlier statements accusing Smith of rape and admitted that she had doubts whether the US serviceman indeed raped her. Engaged in combat operations? Last year, Senator Miriam Defensor-Santiago also sought the abrogation of the VFA after learning about a report in which a US military commander had allegedly admitted that US troops were engaged in combat operations in the Philippines. Santiago, who co-heads the Legislative Oversight Committee on the VFA, claimed that Col. David Maxwell, commander of the Joint Special Operations Task Force of the Philippines, had said the Philippine Constitution allows combat operations with foreign troops as long as there is a treaty in force. The VFA, ratified by the Philippine Senate on May 27, 1999, bars American troops from engaging in combat operations except in self-defense. In September 2009, the Senate approved on second reading Resolution 1356 urging the Department of Foreign Affairs to renegotiate the 10-year bilateral agreement. The resolution said the VFA’s fatal flaw lay in its failure to specify the period of stay of visiting forces and the failure to define what are the “activities" that they can engage in while inside Philippine territory. Although the temporary stay of US troops in the Philippines is stated in Article VII, section 2 of the VFA, the pact is unclear about the scope, duration of stay and the extent of engagement of American forces in the country. Hidden agenda Government critics had speculated that US State Secretary Hilary Clinton's visit to Manila last November included a "hidden agenda" of convincing the Philippine government to retain the VFA and disregard Senate Resolution 1356, a claim that the Philippine Defense department belied.
US Secretary of State Hillary Clinton is welcomed at the Ninoy Aquino International Airport in this file photo last November. The former US First Lady visited the country to hold a bilateral meeting with local officials and visit Ondoy-hit areas. AP
Senate Resolution 1356 was not the first attempt at questioning the validity of the controversial bilateral agreement. In January 2006, two months after Nicolas accused Smith of raping her, lawmakers had called for the termination of the agreement and its renegotiation to strengthen the Philippines’ right to have custody over US military personnel violating Philippine laws. Under the pact, US personnel who violate Philippine laws, including those accused of non-bailable heinous crimes, enjoy extraterritorial privileges. This means that while under trial in a Philippine court, they could be placed in the custody of US authorities. Under the agreement, the Philippine court is given only a year to finish the proceedings of a case involving a US soldier. The constitutionality of the VFA has so far been challenged twice before the Supreme Court, first in October 2000 and the second in February 2009. Appeal to next President Meanwhile, two lawmakers urged the incoming administration to either renegotiate or revise the controversial treaty. In a text message to GMANews.TV, Senator Francis Pangilinan noted that the treaty is not recognized by the US Congress and therefore remains an executive agreement. “We continue to subscribe to the dissenting opinion of [Chief Justice Reynato] Puno in that since [the] United States government has not sent the VFA to the US Senate for ratification, then it does not recognize the VFA as a treaty, [an action] required by our Constitution," said Pangilinan, who in February last year filed Senate Resolution 892 calling for the termination of the VFA. “The next administration must work for the renegotiation of the treaty," he added. Bayan Muna Rep. Satur Ocampo, for his part, said the Supreme Court decision showed the Philippine government’s "tolerance" of US troops in the country. Despite the high court's decision, however, the next administration could still review the terms of the pact, he pointed out. He called on the next president to uphold the country's sovereignty, and urged the public to remain vigilant against abuses by American soldiers. —with Aie Balagtas See/RJAB Jr/ARCS/KBK/NPA, GMANews.TV
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