The United States had it coming. President Rodrigo Duterte, in case the ignorant Yanks have not noticed, is cracking down on all onerous contracts that the government has entered into, regardless of when. It does not matter if it was accepted as fair and equitable in previous administrations. What matters is if the Filipino people are getting exactly what they deserve. And when the President says “contract,” this includes all contracts — those entered into by the Philippines with private companies, and those entered into with foreign states.
This is the simple rhetoric: President Duterte promised to “correct” all government contracts before he steps down in 2022. We have seen how the administration has opened the books, rather can of worms, in the 1998 water concession agreement with Manila Water and Maynilad, Ayala TechnoHub agreement between Ayala Corporation and University of the Philippines-Diliman, and Light Rail Transit Agreement also involving the Ayalas and Manny Pangilinan. The 1999 Visiting Forces Agreement (VFA) shall not be spared from this inquisition.
It is of no moment that what impelled President Duterte to do this was the cancellation of the US visa of his good friend Sen. Ronald “Bato” de la Rosa. The root cause, as we all know, is the dumbing down of the US Senate to the level of detained Sen. Leila de Lima, even tax cheat and profane violator of the Philippine Constitution, Maria Ressa, and including questionable provisions in the US Budget law that authorize barring of those perceived to be responsible for De Lima’s present predicament.
What makes the VFA onerous? Simple. The VFA is treated as a treaty in the Philippines, but not in the US. This means, it was concurred by the Philippine Senate, pursuant to the constitutional requirement, but not by the US Senate. Why? Because the US Senate sees this as a mere executive agreement.
Let’s look into this further to highlight its one-sidedness: Article VII, Section 21 of the 1987 Philippine Constitution provides, “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” By way of comparison, Article II, Section 2 of the US Constitution states, “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Clearly, our version is taken from the US Constitution, and we apply our provision on agreements we deem as treaties. But how can one country interpret it as a treaty, while another as mere executive agreement?
The only reason is that the US sees the VFA of minor significance. As can be read from the website of the US Senate, agreements, like the VFA, are considered to be “burdens” to its Senate, to wit: “Many international agreements are of relatively minor importance and would needlessly overburden the Senate if they were submitted as treaties for advice and consent.” It is amusing how the US Senate thinks the VFA as a waste of time, but considers barring Philippine officials purportedly behind the unlawful detention of a drug-peddling senator as a matter of international significance.
The Department of Justice shall be submitting today its memorandum on the termination of the VFA, to which some have objected that it shall need the concurrence of the Senate since it has been concurred to before in 1999. News to them — even Senator Minority Leader Franklin Drilon is of the opinion that no such action is needed from them. Drilon said that he “tried to pass a Senate Resolution which required Senate concurrence in termination of treaties in general. It was opposed by Sen. Emmanuel Pacquiao, and was not passed.” Drilon added, “Thus, while Senate ratification was needed to make the VFA valid, which the Senate did during Erap presidency, it can now be terminated without the concurrence of the Senate.”
Based on this theory, the President can also unilaterally terminate the US’ Mutual Defense Treaty of 1952 and the controversial Enhanced Defense Cooperation Agreement of 2014, the latter being a supplement to the VFA. The Philippine can start anew and partner with a country that respects its true independence and sovereignty.
What happens next after the VFA is terminated? The Philippines has an abundance of international allies that we can conduct military exercises with at more equitable circumstances. We have not learned from the Subic rape case and the Jennifer Laude homicide. Come to think of it, if it were not for the cancellation of Bato’s US visa, this would not have been exposed at all. Who would have known that some good can bear fruit from De Lima’s mindless complaints to the US?