VFA can’t be revised, but only terminated

TAKE IT OR LEAVE IT: Many Filipinos will be surprised to know that the 16-year-old Phl-US Visiting Forces Agreement has no provision for revision or amendment. It can only be honored as is or terminated.

The contract is a take-it-or-leave-it proposition that then President Fidel V. Ramos took. The agreement has no provision for amendment, but only a Section IX (Duration and Termination) that says:

“This agreement shall enter into force on the date on which the parties have notified each other in writing through the diplomatic channel that they have completed their constitutional requirements for entry into force. 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.”

The contract was signed on Feb. 10, 1998, by US Ambassador Thomas C. Hubbard and Foreign Secretary Domingo L. Siazon Jr. It was concurred in by the Philippine Senate and came into force on May 27, 1999, as required by the Constitution, but never ratified by the US Senate.

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MUTUALITY: Contrary to what I first thought, there is some mutuality in the VFA. It is a two-part agreement: one (VFA-1) pertaining to US personnel in the Philippines, and another (VFA-2) a mirror-like version pertaining to Filipinos in the United States as visiting forces.

The two parts reciprocally grant to Filipino forces in the US basically the same status, privileges and rights granted to American personnel assigned to the Philippines.

But we in Manila are generally told only the activities of US servicemen (when they run afoul of the law and, on the positive side, help in disaster rescue, relief and rehab). There is a dearth of information on visiting Filipino military personnel in the US, if there are any.

One imbalance is in the amenities that come with detention. While a US marine detained in a Philippine jail runs the risk of being raped by fellow inmates and possibly sleeping on cardboard on a dirty floor, a Filipino detained in a Stateside jail enjoys good food, color television, a decent bed and such creature comfort.

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NO U.S. RATIFICATION: Another basic disparity is in the two governments’ different processing of the bilateral contract.

Our Constitution provides that the presence of foreign troops must be covered by a treaty concurred in or ratified by the Senates of both countries. Sixteen years after the VFA was signed, the US Senate has not ratified what the White House regards as a mere executive agreement.

Although an executive agreement is, according to some authorities, a notch lower than a treaty, both contracts are binding if signed with regularity and in good faith.

One political advantage of a ratified treaty is that prior Senate approval psychologically involves and commits the legislature to some extent – an element that may be useful when the Executive asks for funds and consent to carry out treaty provisions.

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CONSTITUTIONALITY: A constitutional challenge to the VFA in 2000 was dismissed by the Supreme Court sitting en banc. In a similar decision in 2009, the high court voted 9-4 to uphold the constitutionality of the agreement.

If no new substantive arguments are raised, a fresh challenge at this time is not likely to prosper as the VFA text has not changed. Also unaltered is the continued dependence of the Philippines on American military assistance.

Unless moved by public opinion or political considerations, the Aquino administration does not seem inclined to reopen the VFA. Malacañang appears unwilling to cross the White House, especially while issues over the newer Enhanced Defense Cooperation Agreement are pending.

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CALAX REBIDDING: Another storm blowing in the direction of Malacañang is named CALAX (Cavite-Laguna Expressway project) that had been bid out but was not awarded to the winning bidder after the loser ran to the Palace for it to intervene.

A Malacañang spokesman said that the government has “factual and legal bases” to order a rebidding. That was after President Noynoy Aquino told a foreign press gathering that he was strongly considering a new bidding.

There are also talks of a “Solomonic” way out by dropping all bidders and having the government do the project itself.

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BY THE RULES: Flip-flopping is disastrous. Also, any hint of disregarding the law on public bidding and ensuring a level playing field could torpedo the credibility of the Public-Private Partnership (PPP) program of the administration.

The CALAX conflict was triggered by a disqualified bidder’s claim that its bid was superior to that of the winning, complying bidder.

The claim was made only after the disqualified bidder pulled out its envelop from the premises of the bidding venue, drove to the Manila Hotel and presented its supposedly superior bid to media.

That was the “bid” that sent the President and his spokesmen panicking for a way to justify a rebidding.

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AFCS CASE: It was a good the bidding for other projects like the Automated Fare Collection System came earlier. Otherwise, following the logic of Malacañang, the AFCS project might have suffered the same fate, leaving long lines of commuters waiting at the light rail stations.

Almost the same thing happened in AFCS when one of the bidders, E-Trans Solutions Joint Venture Inc., was disqualified because its technical proposal failed to meet the requirements.

E-Trans asked the Department of Transportation and Communications to reconsider and even prodded the DoTC to open their financial bid, suggesting that they had the superior bid.

The group decided, however, to play by the rule that a disqualified bidder should get their bid documents back unopened, and keep them unopened. E-Trans is led by the Gotianun’s East West Banking Corp.

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