Transcript of Interview - 29 September 2009

On the recent incident of a landmine explosion in Sulu resulting to the death of both US and Filipino troops

Why are they there? American troops should stay out of conflict areas. The problem is they go to combat or conflict areas.

What is its impact on the VFA resolution?

It confirms the suspicion of the university students and the leftists that these Americans are all actually engaging in warfare. War or battle is no longer defined today in armed forces manuals as actual shooting between two persons. War now includes unconventional warfare; so that is the basis of the contention that they are engaging, if not in shooting wars, at least in unconventional warfare.

For me, this constitutes additional evidence that they are already engaged in activities that have not been contemplated by the VFA at all.

What if the US troops retaliate?

They would have to start a war against the Philippines first. We will find ourselves in a state of war with the United States if we do that.

Are you concerned of the implications of the incident?

Yes. I already raised that in my sponsorship speech when I was sponsoring the VFA resolution. How come there are dead Americans in combat areas if it is true that they are not engaged in combat? And we have this suspicion that all these deaths are not necessarily reported in the media because it is kept as a secret.

Why were there in an area where there are landmines? We will necessarily define that area therefore as a conflict area at the very least.

But what can you say about the US troops’ involvement in the rescue operations for the victims of Typhoon Ondoy?

As I’ve said we welcome this. No one in his right mind would reject this offer of humanitarian assistance. But I humbly contend that this is all part of their psy-ops (psychological operations). They gather intelligence by this means. So it is not always a one-way street. We may be benefiting as a people, but they are benefiting as well.

Wouldn’t the incident drag the US troops into the conflict?

They already were when they insisted on the VFA. You must remember that when the Philippine government became party to the VFA, the United States kept on telling that it would stop military aid and other forms of economic and financial aid if we did not sign the VFA.

Their purpose was not to train Filipinos. Their purpose is to serve their own national agenda which is perfectly natural in international relations. There are those of us who are against the VFA now because after ten years we did not receive what we were hoping we would get in terms of military assistance.

On the US Embassy’s statement that the US troops were there because they were building schools in this particular incident

…And the Filipinos are so stupid as to plant landmines in area for a school where most of their children would go?

On the status of the VFA resolution

Immediately after the Senate approved it, I amended the resolution as suggested by one senator, and sent unofficial copies to the offices concerned like the DFA, the Malacañang VFA Commission, and the US Ambassador.

RENEGOTIATE OR TERMINATE THE VISITING FORCES AGREEMENT

By Senator Miriam Defensor Santiago
Chair, Legislative Oversight Committee on the VFA
Sponsorship speech on 23 September 2009

Mr. President, distinguished colleagues:

On behalf of the Legislative Oversight Committee on the Visiting Forces Agreement (LOVFA), Senate panel, I have the honor to seek approval of Senate Resolution No. 1356, entitled “Resolution expressing the sense of the Senate that the Department of Foreign Affairs should seek to renegotiate the Visiting Forces Agreement with the United States, and in case of denial, should give notice of termination of the VFA.”

Constitution Bans Foreign Military Presence

After the Marcos rule, the renewal of the country’s constitutional regime prioritized the supreme concern of putting an end to foreign military presence, and an end to the continuity of US hegemony. Thus, the Constitution, Article 18, Section 25 provides in part: “Foreign military bases, troops, or facilities shall not be allowed in the Philippines, except under a treaty duly concurred in by the Senate, and . . . recognized as a treaty by the other contracting State.”  

This supreme concern to free the country’s armed forces from the control of a foreign power intended to transform the AFP into a real backbone of Philippine sovereignty, instead of the hired spine of a foreign sovereign. The prospect of realizing the program of AFP modernization generated considerable expectation of independence right in the AFP itself.  

But the advent of the VFA spelled the restoration of the AFP dependence on America. Hence, the fate of modernization has ceased to be a politically appropriate topic in civilized circles.

2009 Supreme Court Case: Doctrinal Confusion

In the 2009 case of Nicolas v. Romulo, the Supreme Court held, by a split vote of 9-4, that the VFA is constitutional. The dissenters were led by no less than Chief Justice Puno, who began by saying: “This slur on our sovereignty cannot continue, especially if we are the ones perpetuating it.”

As a student of constitutional law, I humbly submit that the Nicolas ruling suffers from doctrinal confusion, and that it will not stand the test of time. I pointed out earlier that the Philippine Constitution requires that foreign military bases, troops, or facilities shall not be allowed in the Philippines, except under a treaty recognized as a treaty by the other contracting State.

Has the US government recognized the VFA as a treaty? The answer is no.

The US Constitution provides that the US President has the power to make treaties, but only “by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur.”¹

Has the VFA been concurred in by two-thirds of the US Senate? The answer is no.

The Nicolas majority opinion claimed that the VFA was submitted to the US Senate. This is misleading. The VFA was submitted as a compliance with an American law called the Case-Zablocki Act. This Act requires the US President, through the Secretary of State, to transmit to the US Congress, the international agreements entered into by the US government, or by its officials or agencies, which are not characterized as treaties. Thus, the US government does not characterize the VFA as a treaty. Therefore, the VFA, since it does not comply with the requirement of the RP Constitution, is unconstitutional and void in our country.

But because of the Nicolas opinion, the VFA is now part of the law of the land, to use RP constitutional language. By contrast, since the VFA is not characterized as a treaty in the US, it is not the supreme law of the land, to use US constitutional language. The US does not consider the VFA as a treaty, and it certainly does not consider the VFA as a self-executing treaty. Thus, US courts are not necessarily bound by it, because the US government considers the VFA as a mere executive agreement.

VFA Void for Vagueness

In the language of constitutional law, the VFA is void for vagueness, because it fails to define the terms “visit”, “temporary”, and “military activities.” Under the vagueness doctrine, it is impermissible for a statute to delegate basic policy matters to administrators, to such a degree as to lead to arbitrary and discriminatory application.

a. No Definition of “Visit”

Filipino political leaders involved in the signature and ratification of the Visiting Forces Agreement with the United States (VFA) appear to have limited themselves to the title of the VFA, and never bothered to explain the term “visit” in the text. They gave the impression that under the VFA, the US military forces would be just “visiting”.

The document is officially titled: “Agreement between the government of the Republic of the Philippines and the government of the United States of America regarding the treatment of US armed forces visiting the Philippines.” But there is no definition of a visit.

Before the VFA was signed by the two governments, President Ramos described the VFA as intended for military exercises of US and Philippine forces. Endorsing the VFA for Senate concurrence, President Estrada emphasized in his press statements that the VFA pertained only to “military exercises”. Then Secretary of Foreign Affairs Siazon, who signed the VFA for the Philippines, expressed himself more clearly: “The VFA only speaks of American military forces who come to the country to conduct joint military exercises with Philippine troops.”² Deliberate or not, these pronouncements, authoritative as they are, give a false or even deceptive impression of the VFA.

b. No Definition of “Temporary”

The VFA, Article 1 titled “Definitions” does not define what is “temporary.” It merely states: “’US personnel’ means US military and civilian personnel temporarily in the Philippines.”

Black’s Law Dictionary, 8th edition 2004, defines “visit” in international law as a naval officer’s boarding of an ostensibly neutral merchant vessel from another state to exercise the right of search. The same law dictionary defines “temporary” as continuing for a limited (usually short) time.

The Oxford Dictionary of Law, 6th edition 2006, defines “visiting forces” as: “forces from abroad, including their civilian components.” It does not bother to define “temporary.”

In the absence of conventional dictionary definitions of the words “visit” and “temporary” as terms of international law, it becomes necessary to define these terms in any international agreement. When the VFA failed to define these terms, then the failure to do so was done willfully and in bad faith. These undefined terms are each a lacuna, a blank space. These lacunae in substantive information are purposely devious, in order to allow the US forces to stay indefinitely in our country.

Thus, built into the VFA is a mechanism of flexibility that can deploy the US military forces in Philippine territory in a broad spread of strategic purposes, making the VFA an omnibus of US military presence of various forms and of varying objectives.

The history of the Senate contains certain defining moments, and one of them was Senate rejection of a new proposed agreement for the retention of the US military bases. But that defining moment appears to have been blurred, if not erased, by the VFA, which restores US military presence in our country.

c. No Definition of “Activities”

The political leadership that has given a deceptive description of the VFA as designed only for “military exercises” will be put to shame by their own reading of the VFA text, which NEVER uses the term “military exercise”. The Preamble merely states: “Reaffirming their obligations under the Mutual Defense Treaty of 30 August 1951.” By contrast, the text of the VFA uses the term “activities,” without defining it or setting its limits.

Although the “activities” of US military forces under the VFA are unbounded, not one office or agency of the Philippine government – including the Senate – has ever raised the fundamental issue as to the magnitude of US military presence that the VFA allows. Similarly, the unlimited “activities” that the Philippine government may approve under the VFA has not been publicly discussed. And yet, the determination of the true nature and extent of the VFA hinges on what “activities” are contemplated by its object and purpose.

The VFA, Article 1, makes mention of “activities approved by the Philippine Government,” which may justify the presence of United States military and civilian personnel in the Philippines. Under Article 3 (1), the Philippine Government is under duty to facilitate the admission of US personnel into the Philippines “in connection with activities covered by this agreement”. What “activities” are subject to approval by the Philippine Government; and what are the “activities covered by this agreement” are questions that determine the nature, purpose, scope, and frequency of “visits” that actualize the US military presence.

The result is that the VFA, in circumvention of the prohibition against foreign military presence under the Constitution, opens the way to all forms of military activities of the US forces in Philippine territory, short of establishing a permanent military base.

Strategy of Forward Operating Bases

It must be emphasized that following the end of the Cold War with the implosion of the Soviet Union, the United States shifted its strategic policy from maintaining a permanent military base. It could be that changing power relations may require basing arrangements, in particular because of the emergence of an Enemy State, in sharpening conflict situations that may develop in US-China relations. But that is for the future.

For the present, the US policy is in favor of flexible military responses toward the development of “hybrid warfare” that calls for quick mobilization of small specially trained contingents, directed to specific incidents. This is also called “crisis response, rapid deployment unit”.

These are part of the new American military strategy of fighting so-called asymmetrical wars. Under this new lexicon, US forces establish Cooperative Security Locations where they pre-position logistical support. The Americans keep these locations small to avoid detection, but are prepared to convert them into larger military bases, when it becomes necessary.

Under cover of the VFA, the US in effect operates these mobile and flexible forward operating bases. These bases are not limited to training and capacity building. They go further by allegedly providing “logistical and intelligence support.” This term is so broad that under US interpretation, it allows actual immersion in combat operations.³

An American writer, in an article in the publication Atlantic Monthly, said:

There is high probability as well as existing accounts that the US forces are engaged in combat operations. The US Institute for Peace, a US government funded institution, describes the role of the US forces deployed in Mindanao in its February 2008 report. The deployment of US forces in Mindanao was not for humanitarian missions or civic actions, but for specific military objectives.⁴

US Task Force Engages in Combat

Two categories of military activities under the VFA have been established:

• The regular joint military exercises, which require temporary stay of US forces for the duration of each joint exercise; and


• The Joint Special Operations Task Force Philippines (JSOTF-P), here known as Task Force. The Task Force is intended to target “terrorists”, i.e. the Abu Sayyaf Group (ASG) and the Jemaah Islamiyah (JI), which are both listed by the US Department of State as “foreign terrorist organizations”. By its nature, the Task Forces, such as the JSOTF-P, normally operate in war zones as US instruments in its “global war against terror”.

The first commander of the Task Force, Col. David Maxwell, has clearly implied that combat operations are part of its business. He wrote in a military review journal this jaw-dropping example of constitutional illiteracy:

The deployment of U.S. troops was contentious in-country, because the local press asserted that U.S. forces could not legally participate in combat operations. However, a correct reading of the Philippine Constitution reveals that it prohibits only the stationing of foreign forces in the Philippines… The Constitution does not prohibit combat operations and provides an exception to this if there is a treaty in force and a treaty has been in force between the two countries since 1951. (Emphasis added.)⁵

Newspaper reports, internet sources, and US military accounts indicate that through the Task Force, US forces are engaged in unconventional warfare and combat operations. Col. Maxwell has described the Task Force that he once led as conducting operations “under the guise of an exercise”. 6 It is widely believed too, through US and Philippine sources, that US forces have established small-scale military bases in Zamboanga City and Sulu.

Detailed accounts of US military presence in the Philippines are too extensive to be treated in a short sponsorship speech. Accordingly, I am prepared with an Annex “A” that gives a sampling of the sources available, in particular from US military accounts.

Adding to the expansive meaning of the term “activities” as used in the VFA, US Defense Secretary William Cohen once declared that the VFA would enable US ships to have port calls or regular calls, aside from military training. In the period April 2001 to October 2007, more than 50 US warships entered Philippine territory and docked in various parts of the Philippine archipelago.⁷

Mutual Defense Treaty Irrelevant

Since this Senate failed to raise the fundamental issue as to the scope or magnitude of US military forces under the VFA, what “activities” have been performed in practice in the course of the VFA implementation?

By decision of the Mutual Defense Board, the US-RP Mutual Defense Treaty (MDT) has been retooled into an anti-terrorism instrument, presumably on the basis of agreement between President Bush and President Arroyo. Quite remote from the object and purpose of the MDT, anti-terrorist activities have assumed a formal vehicle in MDT.

This gives the impression that the anti-terrorism measures by US military forces in Philippine territory are being carried out as a matter of treaty obligation on the part Philippine government. Thus, there would be no need of a separate agreement on combating international terrorism, and consequently there would be no need of Senate approval through constitutional concurrence. It is under the US policy against terrorism that the US-RP joint military exercises have been conducted through the years, such as the Balikatan exercises.

It is routinely argued that the 1998 VFA merely implements the 1951 Mutual Defense Treaty. These two instruments are 50 years apart. How could the RP and the US provide in 1951 for the problem of terrorism in 1998? And if this agreement is to be taken seriously, why is there no mention of the Mutual Defense Treaty in the text of the VFA? The MDT is only mentioned in the Preamble.

The Philippine Supreme Court considers that the preamble is not an essential part of a statute: “The preamble can neither expand nor restrict its operation, much less prevail over its text. Nor can a preamble be used as basis for giving a statute a meaning not apparent on its face.”⁸

In any event, the MDT merely declares in Article 4: “Each party recognizes that an armed attack in the Pacific area or either of the parties would be dangerous to its own peace and safety, and declares that it would act to meet the common dangers in accordance with its constitutional processes.”

Thus, the MDT is irrelevant to the VFA. There is no armed attack against the Philippines; what we have in Mindanao is an insurgency. In case of armed attack in the Philippines, US response would not be automatic, but would have to undergo US constitutional processes, whatever the Americans will conceive it to be.

If China launches an armed attack against the Philippines over ownership claims to the Spratleys, will the US come to the aid of the Philippines? No. During this year’s visit to the Philippines, US Defense Secretary Robert Gates was quoted as saying: “There are a number of security challenges and obvious concerns on conflicting claims in the South China Sea. The US takes no position on these claims.”⁹

But in realpolitik, Gates was merely saying that the US at this time cannot afford to antagonize China. China has bought US treasury bonds worth US$1 trillion. These so-called treasuries are documents of loans borrowed by the US. Hence, the US owes US$1 trillion to China.

Benefits Are Illusory

The Philippines is not even among the Top Ten Military Aid Recipients of the US compiled by the Center for Public Integrity three years after the 9-11 bombings of the Twin Towers in New York.¹⁰ The following list uses round figures:

1. Israel - $ 9 B


2. Egypt - $ 6 B


3. Pakistan - $ 4.6 B


4. Jordan - $ 2.6 B


5. Afghanistan - $ 2.6 B


6. Colombia - $ 2 B


7. Turkey - $ 1 B


8. Peru - $445.8 M


9. Bolivia - $320.6 M


10. Poland - $313 M

From Malacañang, the VFA Commission has produced the following list of financial aid from the US, as follows:

Foreign Military Financing since 1999 - US$250 M
Foreign Military Sales 2001-07 - US$76.5 M
Excess Defense Articles 1999-2007 - US$76.7 M

The US calls the Philippines as a major non-NATO ally, but treats us like a shabby country cousin. In return for the VFA, what we receive is paltry, mostly in the form of Excess Defense Articles, in other words, US military junk. According to the Federation of American Scientists: “Not wanting to pay the cost of things or destroying the surplus, the US Department of Defense dispenses most of it for free, or at deep reduction through the excess defense articles (EDA) program.”

It is said that despite years of American military aid to the Philippines, the AFP remains the most poorly equipped in Asia. Paano, akala natin bibigyan tayo ng Amerikano ng pampagara, yon pala, ukay-ukay ang inabot natin!

Conclusion

This Senate should at best express the desire of the thinking Filipino to renegotiate or else terminate the VFA, for the following reasons:

1. It violates the Philippine Constitution, which provides that the US as the other contracting state should have recognized the VFA as a treaty, not as a mere executive agreement.


2. The VFA, to use a constitutional law term, is void for vagueness, in that it fails to define the crucial terms “visit”, “temporary,” and “activities.”


3. The Supreme Court opinion in the 2009 case of Nicolas v. Romulo suffers from doctrinal confusion.


4. American military forces constitute so-called forward operating bases, thus circumventing the constitutional prohibition against foreign military bases.


5. Only the preamble, not the text, of the VFA mentions the ancient Mutual Defense Treaty, which does not even provide for automatic US help in case of actual attack on the Philippines.


6. The alleged financial benefits under VFA for the most part constitutes US military junk.


7. The VFA is a failure, because after 10 years, the AFP has not modernized sufficiently to keep up with our Asian neighbors, and the terrorist groups are still active.


8. VFA 2 violates the condition laid down in the Senate concurring resolution that there shall be no supplementary arrangement without Senate concurrence.

To top it all, on 21 August 2009, the New York Times reported: “Defense Sec. Robert M. Gates has decided to keep an elite 600-troop counterinsurgency operation deployed in the Philippines.” Ladies and gentlemen of the Senate, this unilateral statement, issued with the usual American military hubris, without consultation and without the consent of the proper Philippine authorities, is no less than an act of provocation against our sovereign country. Please, President Obama, say it’s not true.

And please, ladies and gentlemen of the Senate, do not continue to look the other way, because history is looking us straight in the face. We have tried the VFA for ten years and found it wanting. It is not for this Senate to determine the life expectancy of the VFA. That power belongs to the Philippine President. Therefore, at the very least, this Senate should ask the executive branch of government either to renegotiate or to terminate the VFA.

For, as the immortal Justice Holmes said: “It must be remembered that in quite as great a degree as the courts, legislatures are the ultimate guardian of the liberties and welfare of the people.”

FOOTNOTES

1 US Constitution, Art. 2, Sec. 2.

2 With sources from M. M. Magallona, Legal Issues in the RP-US Visiting Forces Agreement, U.P. Law Center, 1998, p.1.

3 John Hendren, “Rebels shoot at US Troops in the Philippines,” Los Angeles Times, 18 June 2002.

4 Robert D. Kaplan, “Imperial Grunts,” Atlantic Monthly, October 2008, available online.

5 Military Review Journal, May-June 2004, as quoted in Focus on the Global South, Unconventional Warfare, No. 1 January 2007, pp. 8-10.

6 Focus on the Global South, At the Door of All the East, No. 2, November 2002, pp. 60-61.

7 International Herald Tribune, 4 August 1998.

8 People v. Garcia, 85 Phil. 663 (1950).

9 Ellen Tordesillas, June 2009 online.

10 Center for Philippine Integrity, “Collateral Danger: Human Rights and US Military Aid After 9/11,” issued 22 May 2007 online.

MIRIAM: US TROOPS IN COMBAT UNDER VFA

Sen. Miriam Defensor Santiago, chair of the Legislative Oversight Committee on the Visiting Forces Agreement, said that she plans to recommend to the Senate the abrogation of the RP-US VFA, because US troops are allegedly going beyond military exercises and have extended their presence in actual combat in Mindanao . 

“My reference is Col. David Maxwell, commander of the Joint Special Operations Task Force Philippines ,” Santiago said. 

At the hearing held yesterday (Thursday), Santiago cited the publication Focus on the Global South, quoting Maxwell as saying: “The Philippine Constitution does not prohibit combat operations and provides an exception to this, if there is a treaty in force.” 

“By his own admission, Col. Maxwell is using the Task Force to engage in battle in Mindanao in the US war against terrorism, which includes the Abu Sayyaf and the Jemaah Islamiyah,” Santiago said. 

She said that although RP and US authorities claim that US troops in Mindanao are only engaging in so-called military exercises, this term is not used in the VFA itself. 

“The VFA never uses the term ‘military exercises.’ Instead, it uses the word ‘activities.’ This is the loophole in the VFA,” she said. 

She said that the Task Force deploys US forces in unconventional warfare and combat operations, and Maxwell himself admitted in a US interview that he is operating ‘under the guise of an exercise.’ 

Santiago said she suspects that there are “small-scale military bases” in Zamboanga City and in Sulu. 

Santiago also criticized the Supreme Court decision in the 2009 case of Nicolas v Romulo. 

“In Nicolas, the Court ruled that the US has complied with the Philippine constitutional requirement that the VFA should be recognized as a treaty by the US . I respectfully disagree,” she said. 

Santiago, last year’s Philippine nominee to the International Court of Justice, said that under the US Constitution, a treaty is an international agreement which the US President makes “by and with the advice and consent of the Senate.” 

“The US Senate never consented to the VFA. In US law, it is not a treaty but an executive agreement. Therefore, it violates the RP constitutional requirement that foreign military troops will be allowed in the Philippines only under a treaty recognized as a treaty by the US ,” she said. 

Santiago said that the use of the word “visiting” in the VFA is misleading, because the US troops are still in the Philippines after 12 years. 

“If the US wants to use Philippine territory in its alleged war on terror, they will have to negotiate a treaty with the RP. In the meantime, in my humble view, the presence of US troops in Mindanao, and even worse, their participation in combat operations, are illegal,” she said.

Transcript of Sen. Santiago's interview - 13 April 2009

On the VFA

I have called for a hearing on the proposal which seems to be mounting to terminate the VFA. Under its own terms, the VFA can be terminated by either the Philippines or the US for any or no reason, and the termination will be effective after notice to the other party within six months. We don’t need a reason. The real reason is, I believe, that after ten years of operation in our country, the VFA is working more harm than good to the national interest. It is acting as a lightning rod for the enemies of the US , and we are being used as a monitoring station by the US Armed Forces in its so-called ‘war on terror’. According to President Obama there is no more ‘war on terror’ and therefore there is no need for the Americans to stay here.

On the part of the Philippines , what we got was used military equipment—in other words, American junk. I have read the papers this morning and I have discovered that the commitment to give us their used military equipment has been dangled before the Philippine government since the early 1950’s. So every time they want something from the Philippines , they will always offer the same deal. If we let them do something in our territory, they will give us their used military junk. I don’t think that it is consonant with the worldview of the new president, particularly since he has spent his childhood in Indonesia which is one of the closest and most analogous neighboring countries to ours. Therefore I think we should give President Arroyo more resources with which to face up with the US which tends to become arrogant every time it is able to get something out of the Philippines for nothing.

On charter change

In addition, I think the moment the House of Representatives passes the so-called charter change resolution, immediately I, and definitely certain other senators, will rush to the Senate to challenge the House resolution on a petition for certiorari, for example. It is their view that when the Constitution provides that a constituent assembly, composed of members of the Congress sits down to change the Charter, the legislative vote should be three-fourths of the votes of the senators sitting down with the House members—and therefore counted as an ordinary House member—that is for me a completely unacceptable view of our Constitution.

Under the doctrine of necessary implication, you read into the statute whatever is necessary in order to effectuate it. Our Constitution provides for a bicameral Congress, and therefore voting should always be bicameral. It can be held at the same time, but the House would vote among itself, and the Senate should vote among itself.

And even if we are outvoted, I believe that the Filipino voters will never approve in a plebiscite any charter change that has been passed only by the vote of the House counting the vote of the Senate together with itself. That will simply not be acceptable to the Filipino public because the Filipino voter is very jealous of his prerogative to cast a vote in favor of his president.

If we change to the parliamentary system, they will not personally vote for their prime minister, but instead surrender their vote for the prime minister and delegate it to the member of parliament of his district. The vote is the only time the voter asserts his authority in a flawed democracy like ours. Even in the case of the stupid corrupt voter, at least it gives him the opportunity to make money out of the politician that is stealing money anyway in the last three or six years. So they will never agree to the proposal to take away this power from themselves. That is the problem.

Of course there are many arguments in favor of a parliamentary system, but basically we have no background in this process because we were colonized by the Americans like other Southeast Asian country. Therefore, I feel that this will turn, like all great political questions, into a great judicial question. The issue is whether the Arroyo appointees will feel bound to vote in a partisan fashion just to support the president who appointed them to office. I don’t think so.

Is PGMA looking for a term extension?

I think she will want more to leave a good name for herself. As you know, she is faltering in the popularity surveys, and for her to be more than proactive in pushing for a shift to a parliamentary system might spell her doom. So she will have to take this in proper perspective. She will not only be fighting for her political life, but also her reputation in history.

Those congressmen are thinking that they can sell their votes to the highest bidder once they turn themselves into parliament. There will be a campaign among themselves on who will be elected prime minister. What will happen is that the ‘prime-ministerables’ will be trying to buy the rest of the members of parliament. How much will each candidate for prime minister will be willing to pay for each member of parliament? Every member of parliament will be for sale whether actually he or she is not. That is how every candidate for prime minister will view their colleague. The money used to be spent to buy the Filipino voter will now be concentrated on some three hundred people. You want to be a gazillionaire? Run for member of parliament.

Is there enough time for charter change?

No, definitely there is no more time left. Unless you run a gravy train. And I just don’t think that the Filipino is in the mood to go along the shenanigans of corrupt politicians. Why do we have to change right now? Why can’t we change it on, like, 2011 or some other period of time? Why do we have to do it right now? Are we sinking into the Pacific Ocean ? Are we gasping for breath? There is no defense on the question of necessity. Why now? Why so urgent?

Are the congressmen looking for a term extension?

A politician is always a hopeless optimist. He is always an apostle of hope. He is always hoping that things will turn out for the best. Even if they will say right now that there will be no term extensions, they are hoping that once the resolution is passed for charter change, things will somehow change and they can still remain in office. Otherwise they will not be members of the House. You have to be inconceivably optimistic to be a member of the House of Representatives.

On the status of the WB hearings

It was clear that there was no evidence as sanctioned by the Rules of Court. I think that those who won’t agree on how I conducted the proceedings are hoping that they can file the same resolution and have it assigned to another committee, otherwise engage in forum-shopping. At that point, I will put my foot down; I’m going to the Supreme Court and say you can’t do this. In the first place, the legislative committee of the Senate is not the NBI or the office of the fiscal. We are not supposed to be conducting preliminary investigations of criminal cases. We are conducting investigations in aid of legislation. And since the WB doesn’t even want to share any information with us, there is no modicum or scintilla of evidence on which to base any adverse statement against the First Gentleman.

Let the Supreme Court rule on whether if a minority of the Senate thinks that it did not get the political partisan results it was hoping for, it can go and refer the same subject matter to another committee so that they can get the result it wants in terms of political mileage. Are we allowed under the Constitution to do this? The Rules of the Senate provides that the Rules of Procedure will not be strictly followed during legislative investigations except when a substantive right of the accused is involved. A substantive right is any right protected and defined under the Constitution, and one of these substantive rights is the right to be presumed innocent.

Another committee can hold another investigation on another aspect, but you have to examine the process. If it simply results in placing the First Gentleman on the dock again, I will resent it as a lawyer.

I will file a committee report as soon as possible. I’ll simply say that there is no evidence pursuant to the Rules of Court, and my basis will be there is a substantive right involved, and under our own rules, we have to apply the strict procedural rules as provided by the Rules of Court.

SENATE POISED TO SCRAP VFA

Sen. Miriam Defensor Santiago, chair of the legislative oversight committee on the RP-US Visiting Forces Agreement (Lovfa), set for hearing next week a proposed Senate resolution calling for the unilateral termination of the VFA.

“The VFA is now ten years old. Under President Estrada, it was an outright deal. The RP got used military equipment, and the US had the right to snoop around Mindanao , as part of the war on terror of President Bush. We got the equipment, and they snooped for ten years. End of the deal,” she said.

Santiago said that the 1999 Senate Resolution 18 categorically stressed that the Philippine Constitution prohibits the permanent stationing of foreign troops on Philippine soil, and it is the Senate duty to prevent the VFA from turning into a permanent arrangement.

“Resolution 18 specified that the VFA envisioned only temporary visits of US personnel engaged in joint military exercises or other activities approved by the RP government. Beyond 10 years, the VFA will become a permanent visit,” she said.

Santiago said that recently the US defense department sent an email declaring that the phrase “war on terror” would now be replaced by the phrase “overseas contingency operation.”

“The Obama administration has stopped using the phrase ‘war on terror,’ which is the explanation for the presence of US soldiers in Mindanao . Since there is no more war on terror, then there is no more rationale for US troops to be stationed in Mindanao ,” she said.

Santiago quoted the VFA as stating that the Philippine government reserves the right to terminate unilaterally the VFA, once it no longer redounds to Philippine national interest.

“My main objection to the VFA at this time is that it continues to foster an attitude of dependency on our part, and an attitude of arrogance on the part of the US ,” she said.

Santiago said that she has several reservations on the February 2009 Supreme Court decision in Nicolas v. Romulo, which affirmed the prior decision in Bayan v. Executive Secretary, upholding the validity of the VFA.

“The authoritative force of the Nicolas case is weak, because it was promulgated by a divided court. Four justices dissented, while two justices did not take part,” she said.

Santiago said that the Supreme Court majority failed to duly consider the constitutional provision that the VFA should be “recognized as a treaty by the other contracting state.”

“Under the US Case–Zablocki Act, the VFA was submitted to the US Congress, because it is not characterized as a treaty. Under American law, any international agreement which is not a treaty has to be submitted to the Congress after it has entered into force with respect to the US . The US government does not recognize the VFA as a treaty, and therefore there is no compliance with the RP Constitution,” she said.

Santiago said that under the US Constitution, a treaty is an agreement of the US President made “by and with the advice and consent of the Senate.”

“In the US , since the VFA is not a treaty, it is not self-executing. It cannot be considered enforceable without an enabling law and it would not be recognized by US courts,” she said.

Santiago said that the majority rule was wrong in citing the 2008 US Supreme Court decision in Medellin v. Texas.

“Medellin dealt with agreements that are considered as treaties. The VFA, under US law, is merely an executive agreement,” she said.

Santiago scheduled the Lovfa hearing on Thursday, April 23, at 10:00 a.m.

Sen. Miriam Defensor Santiago's Press Statements

World Bank Scandal

Political society and media are divided into pro-Gloria and anti-Gloria camps. I am an administration ally. This does not necessarily mean that I would place my judicial reputation at stake in order to unreasonably defend her husband.

I am now attacked by the anti-Gloria forces and their PR firms, simply because I am trying to enforce the Rules of Evidence. Gee, I must be effective. The Tagalog saying is: “People throw stones only at trees which bear fruits.”

My attitude is that, I am only collateral damage. I am amused by the sudden emergence of experts who are not even lawyers, all expressing opinions on the Rules of Evidence. They are like butchers inside the operating room, advising the surgeon on how to conduct brain surgery. My response to critics is: “Too many cooks spoil the broth.”

Committee Hearing on Smith Detention

This will be conducted on Thursday, February 17, by the Committee on Foreign Relations, which I chair. The committee will consult experts consisting of international law experts from the academe, and other fields. We have requested them to advice the committee on the steps that could be taken by the Philippine government to implement the Supreme Court decision that RP-US should immediately negotiate the transfer of Smith from the US embassy premises to Philippine jail premises.

MIRIAM: US POLLS TO IMPACT VFA, WORLD CRIMINAL COURT

Senator Miriam Defensor Santiago, chair of the Senate foreign affairs committee, said that the upcoming US presidential elections will likely result in US policy changes on the RP-US Visiting Forces Agreement (VFA) and the ratification of the Rome Statute creating the International Criminal Court (ICC).

Santiago said that if Barak Obama is elected, it is likely he will take a more pro-Filipino position on the issue concerning the presence of US soldiers in the Philippines under the RP-US VFA.

“Obama grew up in Indonesia , and has been presumably inculcated with the Asian desire for full sovereignty in his nation’s territory, unhampered by any controversial presence of visiting forces,” the senator explained.

Santiago is also pushing for Senate concurrence on the Rome Statute creating the ICC. Under the Constitution, a treaty or international agreement must be concurred in by at least two-thirds of the members of the Senate to be binding on the Philippines .

The ICC is an independent and permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity, war crimes, and the crime of aggression.

The Bush administration has refused to ratify the Rome Statute on the ground that it is harmful to US national interests and “legitimate activities” of the US military abroad.

Santiago believes that a change in US leadership will likely pave the way for US ratification of the Rome Statute.

“Even under the Bush administration, the US seems to be rethinking its policy to favor the Rome Statue because of the situation in Sudan ,” Santiago said.

The US government under Bush has acknowledged that the ICC may be the only effective tool for bringing accountability for the atrocities in Darfur .

Santiago also noted that since 2003, the Bush administration has issued no statement against the Rome Statute.

Like the US , the Philippines has yet to ratify the Rome Statute. Malacañang still has to transmit the treaty to the Senate for ratification even though the Philippines has been a signatory of the treaty since 28 December 2005.

Santiago today filed Senate Resolution No. 710 urging President Arroyo to transmit the Rome Statute to the Senate for ratification proceedings.

In 2005, the Supreme Court ruled in the case of Pimentel v. Office of the Executive Secretary that neither the Senate nor the Supreme Court can compel the President to transmit the signed text of the Rome Statute to the Senate. The President has sole discretion in initiating the ratification proceedings of a treaty.

Transcript of Interview with Senator Miriam Defensor Santiago

13 December 2006

On Smith’s custody

This creates a constitutional problem. Under our constitution, treaties or any international agreement is specifically described as part of the law of the land, as if it were a law passed by our own legislature, with respect to its effectivity in our territory.

The VFA provides that custody of accused American servicemen, until after the decision has become final and executory, presumably elevated to the Supreme Court, shall belong to the US Embassy, or at the very least, in a place that has been reached by mutual agreement of the two parties, the Philippines and the United States. These two parties have already reached the agreement on the US Embassy premises as the venue of the detention of the accused. So logically, the accused should remain in detention in the US Embassy premises pursuant to the mutual agreement between the two governments.

The trial judge is insisting on detention in another location, the Makati City Jail. That would be in effect a violation of our agreement with a foreign government. This will have to be an internal process within the Philippine government, for we have an executive branch that has already agreed to a certain place, and we have a judicial branch insisting on its jurisdiction over another place. There is therefore a conflict between two branches of government. If the executive branch wishes to bring this to its logical conclusion in law, the matter would have to be elevated to the Supreme Court.

It does not seem to be reasonable for a trial judge to assert jurisdiction in such a manner that might compromise our relationship with a foreign government, particularly since there is no indication that the state of detention previously agreed upon by the two governments might prejudice Philippine sovereignty and jurisdiction over this case. There is no indication, for example, if the accused, when turned over to his place of detention in the US Embassy, the embassy will spirit him away or keep him incommunicado, or even take him away from Philippine territory. If there are no such indications, I think that the US government is entitled to a presumption of good faith from our government.

The decision of the trial judge may have become final, but it is not executory in the sense that it is still open to appeal either to the Court of Appeals or the Supreme Court. In that sense, the conditions specified in the treaty has not yet taken place. Therefore, the accused should remain detained within US Embassy premises, as previously agreed upon.

The provision of the VFA is very clear. Whether I like the provision or not, since it is already part of the agreement that has been properly and duly entered into by the two governments, then we are bound by it under international law.

On the Con-Con

Kung meron panukalang resolusyon ang parehong kamara ng Konggreso na ibibigay ang kapangyarihan sa Presidente, pwede siyang mag-appoint ng delegates. But the thing here is, kung mag-eleksyon tayo para sa mga delegado sa Constitutional Convention, isabay man natin sa eleksyon sa 2007 o hindi, gagastos pa rin ang bayan. Gagastos sa pangangampanya ang mga delegado, bibigyan pa natin sila ng sweldo, at magbabayad pa tayo ng renta para sa gusali kung saan sila magtitipun-tipon. All of these will eventually reach billions of pesos. Pareho pa rin ang kalalabasan. Ang iniiwasan sana natin ay hahawakan ng mga pulitiko sa House of Representatives ang pagsulat ng bagong Saligang Batas. Kung maghahalalan para sa mga delegado, asawa at mga anak pa rin nila ang tatakbo, kaya ganun pa rin ang kalalabasan. Kaya hindi ako bilib sa Con-Con na yan. Mas mabuti pa ang Constituent Assembly basta mag-usap muna ang Senate President at ang Speaker of the House of Representatives para magkasundo kung ano ba talaga ang mga basic principles na kailangang palitan bago tayo gumawa ng mga formal na resolution sa plenary session.

May problema rin kung ang Pangulo ang mag-a-appoint ng mga delegado sa Con-Con. Sino ang magbibigay ng payo sa Pangulo kung sino ang magaling, at alin ang mga sector na dapat may representante sa Constitutional Convention? If we give the sole power to appoint to the President, it will also inevitably become a political process because she will be under severe pressure by her colleagues in the administration party to appoint those who are friendly to certain politicians.

Basta dapat i-disqualify na lang yung mga kamag-anak ng mga senador at congressmen para iba naman.

Charter change is not a dead issue. It is in its last gasps. It still has chances of staying alive but a miracle worker has to come and apply mouth-to-mouth resuscitation because people are fed up with it.

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