Guingona claimed the RP-US Non-Surrender Agreement, which he branded as "unequal and unfair", may have "dubious constitutionality" since it was "directly linked to the grant of US military assistance to the Philippines."
"The so-called Patriot Act of the United States, officially called the American Service Members’ Protection Act, prohibits military aid to the government of a country that is party to the International Criminal Court," Guingona explained.
Guingona pointed out the Patriot Law authorizes the US President to waive the prohibition if the foreign country, as in the case of the Philippines, signed the non-surrender agreement with the US.
"By means of the agreement, the Patriot Act is extended to apply to the Philippines, with the result that we are prevented from cooperating with the ICC by the surrender of US personnel who are under investigation or prosecution for criminal acts committed within Philippine territory," Guingona said in a statement.
During the state visit of President Arroyo to Washington last month, US President George W. Bush hailed the Philippines as a major non-NATO ally and pledged to give $356 million in military aid and assistance.
Guingona pointed out that the executive agreement, concluded last May 13 in an exchange of diplomatic notes between Foreign Affairs Secretary Blas Ople and US Ambassador Francis Ricciardone, "encroaches upon the legislative authority of Congress and violates the Constitution’s guarantee of equal protection under the law of all citizens."
Guingona called on Ople to have the agreement submitted before the Senate for ratification since it shapes a "new policy and violates the equal protection clause enshrined in the Constitution."
A review of the agreement showed the Philippines would not be able to surrender US servicemen or nationals charged before the ICC without the consent of the US government, Guingona said.
"We may, however, be forced to surrender Philippine servicemen or officers named in the same case before the international court," he added.
Guingona said he is "doubtful" about the power exercised by the executive department through Ople in signing the agreement.
"As the non-surrender agreement involves the avoidance of criminal liability, it is the proper province of congressional authority," Guingona said.
The Vice President suggested that a congressional inquiry should be undertaken on the issue with the Senate taking action "as this category of international commitment on the part of the Philippines actually constitutes a formal treaty that is subject to Senate concurrence under our fundamental law."