Basing VFA termination on

Dela Rosa's canceled visa a

'serious mistake' – Tatad
By Glee Jalea, CNN Philippines
Published Feb 20, 2020 12:58:50 PM

Metro Manila (CNN Philippines, Februay 20) – Scrapping the Visiting

Forces Agreement (VFA) merely based on the visa cancellation of a
presidential ally is a "serious mistake," a former senator warned
Thursday.

Former senator Francisco "Kit" Sarmiento Tatad was referring to

President Rodrigo Duterte's decision to abrogate the two-decades-old
military pact after the US government revoked Sen. Ronald "Bato" dela
Rosa's visa.
"This decision based on the cancellation of the [visa] of former
colleague Senator dela Rosa is a serious mistake that cannot be
inflicted in the history of our diplomacy or in the posterity of our
Filipino people, " said Tatad, a sponsor of the Senate resolution
concurring with the VFA ratification in the 11th Congress.

The former lawmaker appeared as resource person in the Senate

foreign relations committee which is currently discussing the status of
Senate Resolution 305. The panel, headed by Senator Aquilino
Pimentel III, tackled the validity of termination or withdrawal from
treaties upon the concurrence of the upper chamber, following
Duterte's decision to terminate the deal with the US government.

"No treaty is possible without the approval of 16 of our 24 senators.

From a layman's point of view, it is the Senate concurrence that gives
validity to a treaty. Without Senate concurrence, there is no treaty,
and there will be no treaty to abrogate," he said.

This number is equivalent to the required concurrence of 2/3 of all

members of the Senate when voting on an international agreement
requiring participation of Congress, Tatad stressed.

"Since [Duterte] cannot have a valid treaty without Senate

concurrence, [then he can not be] able to abrogate a treaty without
Senate concurrence. I think that is quite clear," he added.

Senators are still trying to fight for their power to have a say on the
matter. Pimentel noted that they are already drafting the petition
which they will file before the Supreme Court to question the role of
the upper chamber in the termination of the VFA. Tatad and former
senator Rodolfo Biazon, both sponsors of the resolution concurring
with the VFA ratification in 1999, are also joining the incumbent
senators in the filing of the petition.

Senator Franklin Drilon said that if the high court sides with them and
lets the Senate concurrence bear weight on the matter, this could deem
the Duterte administration's VFA termination invalid.

Department of Foreign Affairs (DFA) special assistant Igor Bailen,

noted during the hearing that the VFA termination does not require
Senate concurrence as the validity of Duterte's power as President is
"judged under less stringent standards."

However, Dean Melencio Sta. Maria of the Far Eastern University

Institute of Law said that the cancellation of the VFA did not have to
be based on a knee-jerk reaction of the country's top public official in
the first place.

"Cancelling the VFA does not require a knee-jerk reaction but a

response resulting from a circumspect analysis intrinsically of its
content," said Sta. Maria.

He added that Duterte did not even "utilize much of the DFA's
expertise" in the issue, which would bear more weight in the
Philippines' military capability amid the "Chinese aggressiveness" in
the West Philippine Sea.

The Philippine government has already sent an official notice of

termination of the VFA to the US Embassy last February 11, which will
become effective after six months or 180 days.

The US government has already received this notice, but President

Donald Trump simply shrugged it off, noting that "they would save a lot of
money" under the military accord which used to allow the US to
provide military assistance and financial grants to the Philippines.

The issue first stemmed from the US Senate's move to ban Philippine
officials involved in the detention of opposition Senator Leila de Lima
from entering the US. However, Dela Rosa suspected that the
revocation of his visa could be traced back to alleged extrajudicial
killings in anti-narcotics operations under his watch as former
Philippine National Police chief.

Duterte also previously urged his Cabinet members to boycott travel to

the US in January, around the same time he decided to terminate the
VFA.

EXPLAINER: The Visiting Forces Agreement 

For his part, Dela Rosa recently bared that he is not joining his
colleagues in contesting the VFA abrogation even after admitting
earlier that he is "bothered" by the President's move.

Duterte threatens to
terminate VFA if US does not
reverse cancellation of Dela
Rosa’s visa
By Xave Gregorio, CNN Philippines
Published Jan 23, 2020 8:19:45 PM

Metro Manila (CNN Philippines, January 23) — President Rodrigo

Duterte threatened Thursday night that he will terminate the Visiting
Forces Agreement between the Philippines and the United States if
Washington does not reverse its cancellation of Senator Ronald “Bato”
dela Rosa’s visa.

Duterte said in a speech before former communist rebels that he is

giving the US government a month to “correct” the cancellation of
Dela Rosa’s visa.

“No more bases. They have to start to talk to us because they have to
go," Duterte said. "Kahiyaan 'yan sa militar. Biro mo, isang sundalo
nagtatrabaho lang tapos ganunin nila. I am putting them to
humiliation itong mga pulis, mga sundalo."

[Translation: That's an embarassment for the military. Imagine, one

soldier is just working and then they'll do that to him? I am putting
policemen and soldiers to humiliation.]

Dela Rosa responded to the President's statement in a message

Thursday, saying the issue wasn't just about him but of "one-sided
foreign relations."

"OK lang mga sundalo nila labas-pasok sa ating teritoryo while a

senator of this Republic is barred from entering their territory due to
their intentions of tinkering with our domestic affairs," he said.

[Translation: It's fine for their (US) soldiers to come in and out of our
territory, while a senator of this Republic is barred from entering theor
territory due to their intentions of tinkering with our domestic affairs."

For his part, Senate President Tito Sotto said perhaps the President's
statement could "make the US Senate rethink their wrong perception
about our Justice System. He is the President, the buck stops with
him."

Dela Rosa said he would support the termination of the VFA should his
visa not be restored.

Senator Ping Lacson, meanwhile said in a tweet, "A US visa is a

conditional authorization granted to a foreigner. It may be cancelled
without explanation or justification. The VFA is a bilateral agreement
between the Ph and the US that went through some careful and
diplomatic discussion. Pray tell, where is the connection?"
Defense Secretary Delfin Lorenzana said he would have to study the
matter first before talking to Duterte.

Duterte also said he would be prohibiting from entering into the

Philippines all US lawmakers who voted in favor of a Senate
committee report which seeks to ban foreign officials involved in the
"wrongful imprisonment" of opposition Senator Leila De Lima.

The proposed ban ended up getting included in the final version of the
US 2020 budget law by way of a reference to the committee report.
President Donald Trump approved the law.

What is the VFA?

The 1998 VFA is the first of two agreements between Washington and
Manila about the treatment of their troops when they are in the US or
the Philippines.

Under the agreement, US troops are not subject to passport and visa
regulations when entering and leaving the Philippines. Their US driving
permits and licenses are also considered to be valid in the Philippines.

The US also has the right to retain its jurisdiction over its military
personnel when they commit crimes in the Philippines, unless they
committed a crime which is punishable in the Philippines but not in US
or a crime which is related to the security of the Philippines.

The US also keeps jurisdiction over its military personnel in the event
of a criminal prosecution, unless the Philippines convinces it to turn
over its personnel. The US will make its personnel available for all
investigative and judicial proceedings for just one year, after which
the US is no longer obliged to do this.

The VFA can be terminated by either the Philippines or the US by

writing to the other party that they want to end the agreement.

Whether the Senate needs to concur with the termination of the treaty
is still unclear, as the Constitution only says the upper chamber's nod
is needed for a treaty to come into force. This same question is the
subject of petitions before the Supreme Court assailing Duterte's
withdrawal of the Philippines from the International Criminal Court.
The country has had a bitter history with the VFA, as it has been used
by the US to keep jurisdiction over its military personnel during
criminal prosecution. This has led to calls for the repeal of the VFA.

What about Bato?

Dela Rosa confirmed Wednesday that he is no longer allowed to travel to
the US for now since his visa has been cancelled. He told Senate
reporters that the US Embassy told him on January 20, a day before
his birthday, that his visa had been invalidated.

Details surrounding the revocation – including when it became

effective and why it was implemented – remain unclear to Dela Rosa.

But he acknowledged it "might be related" to alleged extrajudicial

killings under his watch as chief of the Philippine National Police (PNP)
from 2016 to 2018.

Reports in December 2019 said the US canceled Dela Rosa's visa in

line with the Asia Reassurance Initiative Act, an American law passed
in 2018 that imposes financial penalties and visa ban sanctions on
foreign individuals and entities involved in violations of human rights
or religious freedoms, and censorship activities.

This measure specifically states that no fund should be given as

counternarcotics assistance for the PNP unless the Secretary of State
reports to the US Congress that the Philippine government has
adopted an anti-drug campaign that is consistent with international
human rights standards. Among the actions being asked of the
Philippine government is the prosecution of individuals involved in
alleged extrajudicial killings.

Dela Rosa is certain the travel restrictions against him are not related
to the ban on Philippine government officials behind the highly
contested detention of Senator Leila de Lima. He said the cancellation
of his visa most likely happened before the ban was approved along
with the entire 2020 budget of the US on December 20, 2019. Reports
on Dela Rosa's voided visa surfaced earlier that month.

Dela Rosa on December 14 last year admitted to CNN Philippines he

had been avoiding visiting the US for fear of being denied entry,
 causing him to miss his colleague and boxing legend Manny
Pacquiao's win against Keith Thurman, Jr. in Las Vegas, Nevada, in
July.

'Capricious, whimsical'
cancellation of VFA, 'a serious
mistake': law experts tell
senators
Katrina Domingo, ABS-CBN News
Posted at Feb 20 2020 09:02 PM

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MANILA - The "capricious and whimsical" cancellation of the Visiting Forces Agreement (VFA) of
the Philippines and the United States without Senate concurrence is a "serious mistake," law experts
told senators Thursday, as the chamber sought advice on its right in treaty abrogations.

While the executive has the right to withdraw from treaties, it needs the concurrence of the Senate to
ensure that the right is not abused, Far Eastern University Institute of Law Dean Mel Sta. Maria told
members of the Senate Committee on Foreign Relations.

"The right may be clear, but that right can be abused," Sta. Maria said, citing how lawmakers were
allowed to discuss the cancellation of the Military Bases Agreement between Manila and Washington
in 1991.

"I think that's the very essence of the shared competency of the legislature and the executive
department on the matters of treaty making and treaty withdrawal," he said.

Former Sen. Francisco "Kit" Tatad said withdrawing from the VFA at this time without Senate
concurrence "is a serious mistake that cannot be inflicted on the history of our diplomacy."

"The decision to abrogate the VFA is a political act and not subject to a judicial review... [but] since
he cannot have a valid treaty without Senate concurrence, he should not be able to abrogate that
treaty without Senate concurrence," he said.
Sta. Maria said the reason for the abrogation of the accord should be reviewed to check if it was done
in the interest of the Filipino people.

President Rodrigo Duterte earlier ordered the Department of Foreign Affairs (DFA) to pull out from
the VFA, which was signed in 1998 to govern the conduct of US troops in the country. American
forces frequently visit the Philippines for exercises and training.

Duterte's decision stemmed from the cancellation of Sen. Ronald Dela Rosa's US visa and the
continuing criticisms his administration gets from American lawmakers.

"Was the unilateral termination illegal and a rude affront to the majesty and authority of this august
body, the Senate? I submit it is," Sta. Maria said.

"If not for the cancellation of the visa of Sen. Dela Rosa, this issue would probably not have come
out," he said.

 Philippines sends notice of VFA termination to US

Former Presidential Spokesperson and now law professor Harry Roque gave a different view, saying
Senate concurrence is not needed in the abrogation of treaties.

"When the constitution is silent, it cannot be implied. When the constitution requires concurrence, it
will explicitly require concurrence," he said.

Next week, the Senate will formally file a petition asking the Supreme Court to rule on the issue,
Senate President Vicente Sotto III told reporters.

The "petition for declaratory relief" will ask the high court "to define the boundaries in so far as
withdrawal of treaties are concerned," Senate Minority Leader Franklin Drilon said in a separate
interview.

 Drilon warns of 'major consequences' if President allowed to unilaterally rescind treaties

At least 7 senators earlier declared they will not support the Senate leadership's move to bring the
issue to the high court. They include Senators Ronald "Bato" Dela Rosa, Imee Marcos, Francis
Tolentino, Pia Cayetano, Cynthia Villar, Christopher "Bong" Go, and Bong Revilla.

All 7 lawmakers ran under the administration-backed Hugpong ng Pagbabago, which was led by
Duterte's daughter Davao City Mayor Sara Duterte-Carpio.

EXPLAINER: Visiting
Forces Agreement
President Duterte has threatened to scrap the military pact between
the Philippines and the United States. Here's what you should know
about it.

Michael Bueza
@mikebueza

Published 9:00 AM, January 31, 2020

Updated 9:00 AM, January 31, 2020

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MANILA, Philippines – Two decades after it took effect, the Visiting

Forces Agreement (VFA) is in danger of being terminated in the
Philippines.
This is after President Rodrigo Duterte threatened to scrap it,
following the United States' move to cancel the visa of Senator
Ronald "Bato" dela Rosa as part of Washington's crackdown on human
rights violators. A retired Philippine National Police chief, Dela Rosa is
known to be the architect of Duterte's war on drugs that has resulted
in thousands of deaths in a span of 3 years.

Know more about the VFA in this Q&A explainer.

What is the Visiting Forces Agreement?

The Visiting Forces Agreement is a pact between the Philippines and

the United States containing guidelines and conditions for US military
and civilian personnel who are temporarily sent to the Philippines.

The agreement was an affirmation of the two countries' obligations

under the Mutual Defense Treaty (MDT) signed in 1951. The MDT is
a commitment to defend each other – in accordance with
constitutional processes – in the event of an armed attack by a hostile
party.

The VFA was crafted following the Philippine Senate's rejection in

1991 of extending the presence of US bases in the country.

The Enhanced Defense Cooperation Agreement (EDCA), signed in

April 2014 under then-president Benigno Aquino III, serves to
operationalize the VFA. Military activities approved by the Philippines
also fall within the context of the VFA. The executive agreement
provides for increased rotational military presence of US troops,
planes, and ships in the Philippines and gives them wider access to
military bases in the country.

In effect, as the implementing agreement of the VFA, EDCA allows the

prepositioning of war materials in approved locations. It also entails
capacity-building towards the modernization of the Philippines' armed
forces. (READ: PH primer on military pact with US)
The VFA was signed on February 10, 1998 by then-ambassador Thomas
Hubbard on behalf of the US and then-foreign affairs secretary
Domingo Siazon Jr on behalf of the Philippines.

Former president Joseph Estrada ratified the VFA on October 5, 1998.

(Estrada succeeded Fidel Ramos, who was president at the time of the
VFA's signing.) On May 27, 1999, the Philippine Senate voted 18-5 to
concur with the ratification, resulting in the effectivity of the VFA.

The VFA also provides for a reciprocal or counterpart agreement that

was signed on October 9, 1998. That agreement covers Filipino
personnel temporarily sent to the US.

What does the VFA cover?

The VFA provides rules for the entry and departure of US personnel in
the Philippines, the movement of military vessels and aircraft, and the
import and export of equipment and supplies in connection with
activities covered by the agreement.

It also makes joint military exercises like Balikatan possible.

Former foreign affairs secretary Albert del Rosario also noted that the
VFA, for instance, made the quick movement of US aid to the
Philippines possible after Super Typhoon Yolanda (Haiyan) hit in 2013.

In addition, the VFA also provides guidelines in the event of a crime

committed by US personnel on Philippine territory. In general, the
Philippines has jurisdiction over US personnel who commit crimes in
the country, and can impose sanctions and punishments in accordance
with Philippine laws. If offenses are, however, committed in relation to
US security and property, or committed in the performance of official
duty, US military authorities assume jurisdiction over their erring
personnel.

Why does President Duterte want to end the VFA?

The President moved to scrap the VFA after two US diplomatic actions
irked him.

In December 2016, Duterte warned of an "eventual repeal or

abrogation" of the VFA after the US did not push through with an aid
package for the Philippines from the Millennium Challenge
Corporation, an aid-giving body. Duterte, however, deferred his
decision out of respect for newly-elected President Donald Trump.

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In January 2020, the US cancelled the visa of Senator dela Rosa over
links to human rights violations, again prompting Duterte to say he
will "terminate" the VFA within a month if the US does not fix what it
had done.

How is the VFA terminated?

Termination will take place 180 days from the receipt of a written
notification of either party to the other:

"This agreement shall remain in force until the expiration of 180 days
from the date on which either party gives the other party notice in
writing that it desires to terminate the agreement."

Can the VFA be terminated by the President alone?

The Duterte government argues it is within the President's powers to

terminate the VFA, likening it to the President's decision to leave the
International Criminal Court.

The Senate and the Department of National Defense seconded the

argument, saying that while the Senate's concurrence was needed for
the VFA to take effect, the same is not needed to end it. They pointed
to Section 21, Article VII of the 1987 Constitution, which requires
Senate approval when signing a treaty, but is silent when it comes to
ending it.

"It is well within the right of the Philippine government to do so if it

determines that the agreement no longer redounds to our national
interest," Defense Secretary Delfin Lorenzana said on January 24.

How did others react to Duterte's threat?

Senator Panfilo Lacson said on January 24 that Duterte's reaction to

cancel the VFA was not commensurate to Dela Rosa's visa
cancellation. (READ: Lacson questions ending VFA to get Dela Rosa's
visa back)

Meanwhile, ex-foreign affairs secretary Del Rosario argued that the

VFA is "imperfect" but "essential" for PH-US ties.
What has the Duterte gov't done so far towards termination of the
VFA?

On January 24, Foreign Affairs Secretary Teodoro Locsin Jr said he

has "started" the process of "terminating" the VFA, by informing the
foreign relations committee of the Philippine Senate. Lorenzana said
on January 24 that he will "discuss with the President" the various
scenarios pertaining to withdrawal from the VFA. Locsin heads
the Presidential Commission on Visiting Forces, while Lorenzana is
the vice chairperson.

On January 25, Justice Secretary Menardo Guevarra said his

department is preparing a legal memorandum on the proper
procedures to terminate the VFA. On January 27, however, Guevarra
said that Malacanang has ordered a "preliminary impact
assessment" on the VFA's possible termination.

"It is my understanding that the President has threatened, but has not
given an order, to terminate the VFA. That's why his office has
requested us to study the potential impact of such termination,"
Guevarra said.

Have camps questioned the VFA's validity and application

before?

Shortly after the VFA's ratification, the Supreme Court (SC) received 5
separate petitions questioning the validity of the VFA. The High Court
consolidated all petitions in one case: Bayan vs. Zamora, referring to
petitioner leftist group Bagong Alyansang Makabayan (Bayan) and
defendant Ronaldo Zamora, who was executive secretary at the time
the case was filed.

The petitioners tried to argue that the VFA "abdicates" Philippine

sovereignty when it comes to trying offenses committed by US
personnel.

On October 10, 2000, the SC dismissed their petitions, saying there

was no grave abuse of discretion by the President and the Senate
when they VFA was ratified. The SC also said it respects the
separation of powers and the systems of checks and balances. "True
enough, rudimentary is the principle that matters pertaining to the
wisdom of a legislative act are beyond the ambit and province of the
courts to inquire," it said.

The High Court did not discuss the petitioners' other points further.

Other legal questions related to the VFA were heard in two more cases
at the Supreme Court, said lawyer Romel Bagares of the Center for
International Law and who teaches international law at the Lyceum of
the Philippines University-College of Law:

 Lim vs. Executive Secretary (2002), where petitioners

questioned the conduct of the Balikatan exercises in 2002.
This case also contained the terms of reference for that
joint military exercise.
 Nicolas vs. Executive Secretary (2009), which upheld the
constitutionality of the VFA, but ordered the foreign affairs
secretary to "negotiate with the United States
representatives for the appropriate agreement on detention
facilities under Philippine authorities." (Bagares is among
the counsels in this case.)

Has the VFA been invoked in controversial cases?

The VFA was put in the spotlight in at least two criminal cases
involving US soldiers, and which both concerned custody issues over
accused personnel.

 The first involved US serviceman Lance Corporal Daniel

Smith in December 2005, when a Filipina named "Nicole"
sued him for a rape in Subic, Zambales. A Makati regional
trial court found Smith guilty in December 2006. After the
verdict, he was transferred from the Makati City Jail to the
US embassy in Manila, as part of an agreement between
then-Philippine foreign affairs secretary Alberto Romulo and
then-US ambassador Kristie Kenney. This move was
 questioned in the case Nicolas vs. Executive Secretary. In
March 2009, Nicole recanted her story. The Court of Appeals
(CA) overturned Smith's conviction in April 2009. (LOOKING
BACK: Daniel Smith and the Subic rape case)

 The second involved transgender woman Jennifer Laude

who was found dead in a lodge bathroom in October 2014, in
Olongapo City. US marine Joseph Scott Pemberton
was found guilty of homicide by an Olongapo trial court in
December 2015. The CA affirmed the verdict in 2017.
Pemberton was detained at the AFP Custodial Center
inside Camp Aguinaldo – not in a regular jail – because of
the provision on detention under the VFA.

According to Article V of the agreement, the custody of any US

personnel whose case falls under Philippine jurisdiction "shall
immediately reside with United States military authorities, if they so
request," from when the crime was committed until all court
proceedings are complete. However, US military authorities shall
make the defendant available to Philippine authorities "in time for any
investigative or judicial proceedings relating to the offense."

In "extraordinary cases," the Philippines "shall present its position"

regarding custody to the US government, which should take it "into full
account." In addition, US personnel should be confined or detained "in
facilities agreed on by appropriate Philippine and United States
authorities."

If the VFA ends, what will happen to other military treaties and
agreements with the US?

The Department of Justice said it will study the effects of the VFA's

termination on the MDT and EDCA.

Meanwhile, Bagares argued that executive agreements based on the

VFA would have "no leg to stand on" if the VFA is scrapped. – with
reports from Sofia Tomacruz/Rappler.com