In his dissenting opinion in the recent consolidated cases of SUZETTE NICOLAS Y SOMBILON v. ALBERTO ROMULO, et. al., G.R. NO. 175888, February 11, 2009; JOVITO R. SALONGA, et. al. v. DANIEL SMITH, et. al., G.R. NO. 176051, February 11, 2009; BAGONG ALYANSANG MAKABAYAN (BAYAN), et. Al., v. PRESIDENT GLORIA MACAPAGAL-ARROYO, ET AL., G.R. NO. 176222, Febrero 11, 2009, Philippine Chief Justice Reynato Puno stated his position that the Visiting Forces Agreement (VFA) between the Philippine and the United States was unconstitutional and that the custody over Lance Corporal Daniel Smith should be transferred from the U.S. Embassy in Manila to the New Bilibid Prison in Muntinlupa, pending final resolution of his appeal from conviction for the crime of rape.
As a former professor of Public International Law (PIL) for many years at my law alma mater, the Far Eastern University (FEU) in Manila, I find wisdom in Puno’s dissent than in the majority opinion.
I wish to discuss Puno’s dissent for purposes of legal research and academic debate among the visitors of this blog.
As a prelude, the instant cases basically discussed the legal distinctions and the effects of the public international law doctrines of “incorporation” versus “transformation” in the foreign relations of our country with the United States.
Puno strongly dissented in the 2000 case of Bayan v. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA 449, 497-521, Puno proffered the view that the VFA fell short of the requirement set by Section 25, Article XVIII of the 1987 Constitution stating that the agreement allowing the presence of foreign military troops in the Philippines must be “recognized as a treaty by the other contracting state.”
He stated that there was an anomalous asymmetry in the legal treatment of the VFA by the United States as opposed to that of the Philippines which he described as a slur on our sovereignty.
In the instant cases, the petitioners challenge the transfer of custody of Daniel Smith from the Philippine government (under the Bureau of Jail Management and Penology) to the United States authorities.
It will be recalled that on December 4, 2006, respondent Daniel Smith was convicted of rape by the Regional Trial Court (RTC) of Makati City, Branch 139. Smith’s temporary confinement at the Makati City Jail was subsequently ordered by the trial court pending negotiations between the U.S. and RP governments.
The public prosecutor filed a manifestation before the trial court submitting copies of agreements signed on the same day by Ambassador Kristie Kenney and Chief State Prosecutor Jovencito Zuno, Secretary of Justice Raul Gonzalez, and Secretary of Foreign Affairs Alberto Romulo turning over to the U.S. authorities (US Embassy) the physically custody of Smith while his appeal was pending.
The public respondents in the instant cases raised the defense of stare decisis and res judicata as against the petitioners’ attempt to assail the validity of the VFA, citing Bayan v. Zamora and Lim v. Executive Secretary.
Puno urged the Court En Banc to revisit Bayan v. Zamora, which upheld the validity of the VFA, in light of a recent change in U.S. policy on treaty enforcement. Of significance was the case of Medellin v. Texas, 522 US ___, where it was held by the U.S. Supreme Court that while treaties entered into by the President with the concurrence of the Senate are binding international commitments, they are not domestic law unless Congress enacts implementing legislation or unless the treaty itself is "self-executing."
In Medellin v. Texas, Jose Ernesto Medellin, a Mexican national, was convicted of capital murder and sentenced to death in Texas for the gang rape and brutal murders of two Houston teenagers. His conviction and sentence were affirmed on appeal. Medellin then filed an application for post-conviction relief and claimed that the Vienna Convention on Consular Relations (Vienna Convention) accorded him the right to notify the Mexican consulate of his detention; and because the local law enforcement officers failed to inform him of this right, he prayed for the grant of a new trial.
While Medellin’s petition was pending, the International Court of Justice (ICJ) issued its decision in the Case Concerning Avena and Other Mexican Nationals (Avena), where the ICJ held that the U.S. violated Article 36(1)(b) of the Vienna Convention by failing to inform 51 named Mexican nationals, including Medellin, of their Vienna Convention rights. The ICJ ruled that those named individuals were entitled to a review and reconsideration of their U.S. state court convictions and sentences regardless of their failure to comply with generally applicable state rules governing challenges to criminal convictions.
In Sanchez-Llamas v. Oregon, 548 U.S. 331(2006) -- issued after Avena but involving individuals who were not named in the Avena judgment, contrary to the ICJ’s determination -- the U.S. Federal Supreme Court held that the Vienna Convention did not preclude the application of state default rules. The U.S. President, George W. Bush, then issued a Memorandum (President’s Memorandum) stating that the United States would discharge its international obligations under Avena by having State courts give effect to the decision.
Medellin repaired to the U.S. Supreme Court. In his petition, Medellin contends that the Optional Protocol, the United Nations Charter, and the ICJ Statute supplied the “relevant obligation” to give the Avena judgment binding effect in the domestic courts of the United States.
The Supreme Court of the United States ruled that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas corpus petitions. It held that while an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is "self-executing." It further held that decisions of the ICJ are not binding domestic law; and that, absent an act of Congress or Constitutional authority, the U.S. President lacks the power to enforce international treaties or decisions of the ICJ.
The new US ruling is clear-cut, according to Puno: While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis.” [See: 522 US ___, March 25, 2008, supra; 128 S. Ct. 1346 (2008)].
The Avena judgment creates an international law obligation on the part of the United States, but it is not automatically binding domestic law because none of the relevant treaty sources—the Optional Protocol, the U.N. Charter, or the ICJ Statute—creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted.
In fine, the U.S. President’s authority to enter into treaties that are enforceable within its domestic sphere was severely limited by Medellin. In Medellin, the United States posited the theory that the President’s constitutional role uniquely qualifies him to resolve the sensitive foreign policy decisions that bear on compliance with an ICJ decision. In said case, the U.S. President, through the issuance of the Memorandum, sought to vindicate the United States interest in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. Though these interests were compelling, the Supreme Court held that “the president’s authority to act, as with the exercise of any governmental power, must stem from an act of Congress or from the Constitution itself.”
The U.S. Supreme Court held:
The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation into domestic law falls to Congress. x x x As this court has explained, when treaty stipulations are “not self-executing they can only be enforced pursuant to legislation to carry them into effect.” x x x Moreover, “[u]ntil such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.” x x x
According to the US Supreme Court, the requirement that Congress, rather than the President, implement a non-self executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate. The Constitution vests the President with the authority to “make” a treaty.
If the Executive determines that a treaty should have domestic effect of its own force, the determination may be implemented “in making” the treaty, by ensuring that it contains language plainly providing for domestic enforceability. If the treaty is to be self-executing in this respect, the Senate must consent to the treaty by the requisite two-thirds vote, consistent with all other constitutional restraints.
The US Supreme Court categorically held that while a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it, or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis.
What is the iimplication of Medellin v. Texas on the VFA?
With Medellin, the case law is now settled that acknowledgement by the U.S. President that an agreement is a treaty, even with the concurrence of the U.S. Senate, is not sufficient to make a treaty enforceable in its domestic sphere, unless the words of the treaty itself clearly express the intention to make the treaty self-executory, or unless there is corresponding legislative enactment providing for its domestic enforceability.
The VFA does not satisfy either of these requirements and cannot thus be enforced within the U.S.
It will be noted that the 1987 Philippine Constitution provides in Sec. 25, Art. XVIII that 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.
Puno stressed that among the three constitutional requisites that must be complied with before foreign military bases, troops, or facilities can be allowed in Philippine territory, the third requirement, that any such agreement should be recognized as a treaty by the other contracting party, lies at the very heart of this case.
He stated that in Bayan v. Zamora, the majority of the Philippine Supreme Court anchored the validity of the VFA on the flabby conclusion that it was recognized as a treaty by the U.S; that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty; that it was inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is binding as a treaty; that as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.” (Bayan v. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA 449, 488).
In strong terms, Puno asserted that to justify its tortuous conclusion, the majority of the Philippine Supreme Court in Bayan v. Zamora did not accord strict meaning to the phrase, “recognized as a treaty” and declared that “words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Thus, the Court held that it was sufficient that the other contracting party accepts or acknowledges the agreement as a treaty.
Puno stated that in obvious error, the majority of the Court gave undue deference to the statement of the former Ambassador of the United States to the Philippines, Thomas C. Hubbard, that Senate advice and consent was not needed to consider a treaty binding on the U.S., on the premise that the President alone had the power to conclude the VFA, deriving from his responsibilities for the conduct of foreign relations and his constitutional powers as the Commander–in-Chief of the Armed Forces, to conclude that the U.S. accepted or acknowledged the agreement as a treaty. He stated that based thereon the majority then jumped to the conclusion that the U.S. recognized the VFA as a treaty, and that the constitutional requirements had been satisfied.
Puno argued that it could be deduced from the posture of the former US Ambassador that the VFA is an executive agreement, entered into by the President under his responsibility for the conduct of foreign relations and his constitutional powers as Commander-in-Chief of the Armed Forces. It can be further deduced that the VFA is not recognized as a treaty by the U.S., but it is akin to a sole or presidential executive agreement, which would be valid if concluded on the basis of the U.S. President’s exclusive power under the U.S. Constitution. In other words, it does not fall under the category of an executive agreement entered into by the President pursuant to the authority conferred in a prior treaty because, although the VFA makes reference to the Mutual Defense Treaty in its Preamble, the Mutual Defense Treaty itself does not confer authority upon the U.S. President to enter into executive agreements in the implementation of the Treaty. Neither does the VFA fall under the category of Congressional Executive Agreement, as it was not concluded by the U.S. President pursuant to Congressional authorization or enactment, nor has it been confirmed by the U.S. Congress, Puno added.
Puno stressed that it must be clear from the text of the VFA itself that the VFA is self-executory in order that it may be reciprocally enforced. He added that
Medellin was straightforward in ruling that the domestic enforceability of the treaty should be reflected in the text of the treaty itself; it cannot simply be inferred from a multitude of factors, nor can it be derived from the context in which the agreement was entered into.
Medellin now imposes a “clear statement requirement” of the self-executory nature of a treaty, before judgments based on that treaty could overrule state law and be enforced domestically. The Court now looks into the language of the treaty, parsing the treaty’s text to determine whether the treaty was intended to be self-executory or not. If the text of the treaty does not clearly indicate the intention of the signatories to make it executory in the domestic sphere, Congress has the responsibility to transform an international obligation arising from a non-self-executory treaty into domestic law.
Puno stated that an examination of the text of the VFA does not show any provision that would satisfy the “clear statement requirement” within the text of the treaty to show that the United States intended it to be reciprocally enforced in the domestic sphere. Absent such clear wording in the VFA itself that it is to be self-executory, and without the concurrence of the Senate, the VFA remains an international obligation of the U.S., but it does not have the corresponding mechanism to have the rights and obligations found therein enforced against the U.S. This is especially true when the enforcement of such rights would cause a violation of U.S. domestic laws, whether substantive or procedural.
In Bayan, the majority of this Court held that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty. The salient question is: who has the authority to acknowledge it as a treaty? Previously, it could have been argued that the President’s recognition alone is sufficient; but all that is now changed with the categorical pronouncement in Medellin that Congress must enact statutes implementing the treaty, or the treaty itself must convey an intention that it be “self-executing” and is ratified on that basis, in order for the treaty to be enforced in the domestic sphere.
It must be noted that Article II, Section 2, Clause 2 of the U.S. Constitution provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” In the U.S., a “treaty” is only one of four types of international agreements, namely: Article II treaties, executive agreements pursuant to treaty, congressional executive agreements, and sole executive agreements. The VFA is classified as a sole executive agreement.
In Medellin, the Us Supreme Court concluded that given the absence of congressional legislation, a non-self executing treaty does not expressly or impliedly vest the Us President with the unilateral authority to make them self-executing.
Puno concluded that at best, the VFA can be considered as an international commitment by the U.S., but the responsibility of transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. It is therefore an error to perpetuate the ruling of the majority of the Philippine Supreme Court in Bayan that it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is binding as a treaty. Medellin has held that the binding effect of a treaty as an international obligation does not automatically mean that the treaty is enforceable in the domestic sphere.
Puno reminded the Court that Medellin held that that the binding effect of a treaty is mutually exclusive from the actual enforcement of the rights and obligations sourced from it.
Though the VFA attaches international obligations to the parties to the agreement, it is irrelevant in the enforcement of a non-self-executory treaty in the domestic courts of the U.S. As long as the text of the VFA does not clearly show that it is self-executory and as long as U.S. Congress has not made it enforceable in the domestic sphere, it does not have obligatory force in U.S. domestic courts.
Puno further reminded the Court that the Philippine Senate has concurred in the ratification of the VFA by a two-thirds vote of its members. The Romulo-Kenny Agreement was entered into in implementation of Article V(6) of the VFA, and the custody over Daniel Smith was transferred from the Philippine Government to the U.S. Embassy.
He reiterated his dissent in Bayan v. Zamora about the clear intention of the framers of the Constitution in imposing the requirement that the agreement must be “recognized by the other state as a treaty.” Recognition as a treaty by the other contracting state does not merely concern the procedure by which it is ratified, or whether or not it is concurred in by the Senate. The decisive mark to show that the agreement is considered as a treaty by the other contracting state is whether the agreement or treaty has obligatory effects and may be used as a source of rights
enforceable in the domestic sphere of the other contracting party.
Medellin evidently shows us that the wording of the VFA does not bear this mark. Though considered as a treaty by the Executive, it may not create obligatory effects in the U.S.’s domestic sphere absent a clear statement in the text of the Agreement that it is self-executory, or without a congressional act implementing it.
Regardless of whether there is concurrence by the U.S. Senate in the RP-U.S. Mutual Defense Treaty, the disparity in the legal treatment of the VFA by the U.S. is clear, considering the Medellin ruling. Indeed, even assuming there is a Senate concurrence in the RP-U.S. Mutual Defense Treaty, the VFA still cannot be given domestic effect in the United States. It is up to the Court to decide whether the terms of a treaty reflect a determination by the President who negotiated it and the Senate that confirmed it if the treaty has domestic effect. To repeat, any treaty becomes enforceable within the U.S. only when the Court has determined it to be so, based on the clear terms of the treaty or through Congressional enactment to implement the provisions of the treaty.
It bears stressing that the RP government has already enforced the provisions of the VFA and has transferred custody of Lance Corporal Daniel Smith to U.S. authorities. The Philippine government has considered the VFA to be fully enforceable within our jurisdiction; yet, the U.S. does not look at the VFA as enforceable within its domestic jurisdiction. This dichotomy is evidently proscribed by the Constitution, for such dichotomy would render our sovereignty in tatters.
