Some people said I did a very good job as spox to President Rodrigo Roa Duterte (PRRD). While I accept these praises with thanks, the reality was I thought I may have done a good job because I more or less know how the President thinks. No, it’s not because I can read his mind. Primarily, it’s because as a former academic, I am trained on how to research, and I used this skill to index the President’s position on every issue under the sun. That is why no one can criticize me as having falsely spoken for the President. Many of my colleagues in the human rights community were in fact aghast since they thought I changed views overnight. This is not the case. The fact is when I agreed to be spox, I knew I should only speak and verbalize the President’s thoughts and not mine.
This is why I am not surprised that as I have previously written in this column, one of the things that PRRD will do to retaliate against the US law that disallowed entry to Filipinos behind the jailing of Leila de Lima was to abrogate the Visiting Forces Agreement (VFA). Well, the President just announced his intention to do so. I can only say: I told you so!
The move is of course in furtherance of the Philippine national interest. The VFA, while purporting to assist us modernize and better prepare our Armed Forces, has not met its objectives. The Americans have only given us their junk military equipment. Moreover, given that we have the longest running insurgency in the world, it is the battle-tested Filipinos who can teach the Americans a trick or two on warfare and not the other way around. The cost, on the other hand, in terms of our national sovereignty, is the painful experience that we gained from the murderer Joseph Scott Pemberton. That before conviction, an American soldier accused of a heinous crime will still be in the hands of the Americans, to be spirited away should they choose to do so. And after conviction, they will still be imprisoned with American guards to be spirited away also if they choose to do so.
This was why I argued in the Supreme Court (SC), on behalf of former Senate President Jovito Salonga, to attempt to declare the VFA as unconstitutional. Since the SC had previously ruled that the VFA was constitutional as an international agreement despite the lack of concurrence on the part of the US Senate, we focused instead on the violation of the equal protection clause in our later constitutional challenge. We argued that the rules on jurisdiction under the VFA constituted special treatment to be given only to American soldiers because we did not agree on the same provisions with Australia, with whom we also have a VFA. Under this latter agreement, the Australians agreed to surrender jurisdiction over the person of an Australian soldier accused of a common crime from the very onset, i.e. during preliminary investigation before our fiscal’s office.
Moreover, we said that incarceration in a golden jail at a place to be mutually agreed upon by US and Philippine authorities also violated the equal protection rights of all other convicts. This is because an American serviceman found guilty of the commission of an ordinary crime will be sentenced to be jailed in a golden cage, while all other convicts will have to undergo the torturous conditions of Muntinlupa. And we also argued that because the special treatment is owing solely to his nationality as an American, this was nationality-based classification and is presumed to be unconstitutional.
Unfortunately, the SC did not rule in our favor. Instead, the court ruled that the VFA was constitutional as an implementing agreement of the Mutual Defense Treaty which was in turn, concurred in by both the Philippine and the US Senates.
Four years later, I was asked by the Office of the President to submit my opinion on whether the abrogation of the VFA could be done without Senate concurrence.
My answer was clear: pursuant to the SC ruling in Salonga vs Executive Secretary, since the VFA is only an implementing Executive agreement to a treaty, then its abrogation was the sole and exclusive prerogative of the president. Never in my wildest dream did I expect that an adverse decision to one of my petitions will achieve what we wanted in the first place: the abrogation of the VFA.
Well of course, my quickie opinion to the Office of the President also addressed the issue on whether a withdrawal from a formal treaty also requires a concurrence from the Senate. Although the case in this regard, regarding the validity of our withdrawal from the Rome statute of the ICC, still has to be decided by the SC, an overwhelming majority of the Justices of the Court, during oral arguments, shared my opinion: since the Constitution only requires Senate concurrence in order that a treaty can be valid and binding on us an does not require the same for withdrawal, such a concurrence is not required.
Four years later, former Senate President Jovito Salonga and I have been vindicated. Goodbye VFA! Goodbye Uncle Sam! Good riddance to you, Yanks! Once more, thanks to PRRD!