It may be a little early to comment on the constitutionality or unconstitutionality of the proposed modification of the Visiting Forces Agreement (VFA) now since not even a preliminary draft is publicly available. But it is good to go back to the constitutional provision involved—Section 25 of the Transitory Provisions—and look at the history behind it.
Section 25 says: “After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”
As can be seen, there is no absolute prohibition of “foreign military bases, troops, or facilities.” They may be allowed “under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.” Moreover, although it is not so stated in the text, it is understood that this concession may be given only to the United States.
Section 25 was the basis for the 1988 VFA with the United States, which is still in force.
The original proposal for what is now Section 25 covered only “bases.” But the draft was modified to include not just bases but also “troops and facilities.”
On this subject, there was the following exchange in the 1986 Constitutional Commission. The first question raised was whether a treaty on this subject must cover all three—bases, troops, facilities—or only one. The answer given was, it was possible for a treaty to cover only one of these.
An objection was raised: “I cannot find any reason why the government can enter a treaty covering only troops.”
Answer: “Why not? Probably if we stretch our imagination a little bit more, we will find one. We just want to cover everything.”
The commissioner giving the answer made it clear, however, that he was referring to permanent troops or facilities, even independently of bases.
But the objector continued: “Could we enter into a treaty wherein we allow facilities to be here without necessarily allowing bases?”
Answer: “I think that is a possibility because, for instance, one can maintain a silo here for nuclear weapons—unless we disallow nuclear arms, of course. But they might want various kinds of facilities which are not necessarily troops, not necessarily bases.”
In the end, what is now in Section 25 was approved.
All this discussion was done during the deliberations on the Declaration of Principles. Later it was agreed that the provision would be placed in the Transitory Provisions where it is now. And the inclusion of “troops and facilities” was the basis for the 1988 VFA. This was concurred in by the Philippine Senate and we accepted the assurance, as we are bound to under international law, that the agreement was considered a treaty by the United States.
As I understand it, the current negotiations with the United States are about the expansion of the provision on troops found in the 1988 VFA and also in relation to the Mutual Defense Treaty. After the new agreement is signed, will it need concurrence by the Senate? Put differently, can the modification be embodied in an executive agreement without need for a formal treaty?
This is not a novel question for us. Under the current Constitution, in a 1987 decision, the Supreme Court said: “While treaties are required to be ratified by the Senate under the Constitution, less formal international agreements may be entered into by the Chief Executive and become binding without the concurrence of the legislative body.” Thus, after the effectivity of the 1987 Constitution, when the time came for a review of the 1947 Military Bases Agreement, the modifications were merely contained in the Manglapus-Shultz Agreement and were not submitted to the Senate for concurrence. The Senate itself agreed that concurrence was not necessary.
I anticipate that the same will happen to the forthcoming modifications of the VFA. But I do anticipate warm debate on the subject.
Should President Aquino, ad cautelam, submit the modification for ratification by the Senate, I am certain it will be recalled that the Constitution’s openness to the accommodation of foreign military forces was born out of the realization of our own national defense needs. It is unavoidable that the current threat of China will be a factor in our international agreements especially on military matters.
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