PRES. ARROYO SHOULD IMMEDIATELY ABROGATE THE VFA FOR BEING UNCONSTITUTIONAL: Upholding it will subvert the Judicial Process

The 1987 Constitution is clear. Section 1, Art. VIII provides that “Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable xxx”.

The Executive is mandated under the Constitution to execute the warrant of arrest issued by a court. The Executive Department through its Justice Secretary has no authority to intervene in the exercise of judicial power and undermine the judicial process by issuing legally untenable pronouncements that the warrant issued by the Olongapo court cannot be implemented due to the provisions of the Visiting Forces Agreement (VFA). Sec. Gonzales’s statement that ‘while local laws empower the government to serve the arrest warrant, it cannot do so in view of the VFA”, is without statutory and constitutional basis. CODAL is, therefore, alarmed by the statement of DFA Spokesperson Bert Asuque that their actions will be guided “by the legal advice of the DOJ”. The VFA is unconstitutional and its provisions cannot repeal or amend our Constitution and laws.

VFA Unconstitutional

Sec. 25, Art. XVIII of the 1987 Constitution prohibits agreements like the VFA:

Sec. 25. 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 the Filipino people in a national referendum held for the purposes, and recognized as a treaty by the other contracting State. (underscoring supplied)

The VFA is an executive agreement between the Philippines and the United States. Even if the Philippine Senate concurred in its ratification, the U.S. Senate refused to concur with the same. The U.S. Government, which avoids signing binding bilateral treaties, does not recognize the VFA as a Treaty.
Since the constitutional requirement that the US recognize the VFA as a treaty is absent, the presence of US troops here are constitutionally banned, and the treaty implementing it, without any legal and binding effect. It is treasonous, therefore, for Pres. Gloria Arroyo and Sec. Raul Gonzales to uphold an agreement that violates our Constitution and laws.

Judge Dilag must refrain from making statements beyond his judicial discretion

CODAL finds highly inappropriate Judge Renato Dilag’s statement that ‘In pursuing the normal legal process in the light of the provisions of the VFA, I am of the view that we can first try to exhaust diplomatic means to get custody of the four American servicemen. We are a civilized nation and we adhere to the tenets of international law.”

Firstly, the exercise of diplomacy is beyond his judicial function as it is an executive prerogative. A judge is required to implement the law and ensure that others execute judicial orders. Secondly, it weakens the strength of the very warrant he issued for the arrest of the accused. Thirdly, by implying that the implementation of our Constitution and laws is ‘uncivilized’ is totally unacceptable particularly if it comes from an officer of the Court. It may also be taken as an affront by the Japanese people who courageously implemented their laws notwithstanding the diplomatic problems it may create.

Warrant of Arrest must be Implemented by the Executive

Police authorities serving the warrant against the accused have all the powers of the Philippine legal system to execute the warrant, by force if necessary, within 10 days from receipt of the warrant issued by the court, as required by Section 4 of Rule 110 of the Rules of Court. Section 3 of the same Rule 110 categorically declares that ‘it shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay.”

The police or any government official, including the Secretary of Justice, who fails to or obstructs the execution of the warrant is liable under Sec. 1 (d) of PD 1829 or an Act Penalizing the Obstruction or Apprehension of Criminal Offenders which penalizes with prision correccional anyone who ‘delays the prosecution of criminal cases by obstructing the service of process or court orders”. Any US official, not so registered with the DFA as a consular or embassy agent as provided for under RA 75 on diplomatic immunity, may also be arrested by the police for violating Sec. 1 ( c ) of PD 1829 which penalizes any person who “obstructs or impedes, frustrates or delays the apprehension of suspects and the investigation or prosecution of criminal cases”.

Recognizance unavailing

Sec. Gonzales’ is reneged on his duty by declaring that “should the turnover of the accused not pushed through, he was almost convinced that the U.S. will submit them for trial” virtually admitting that the government will not enforce the warrant as long as the US will submit the accused to trial. In fact, the warrants can and must be served and the accused arrested when they are presented during the arraignment. His proposal to the US government to hand over the four accused to the U.S. ambassador “on recognizance” violates the Constitution which provides in Art. III, Sec. 13 that “ All persons, except those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance…”. A finding from the court that the evidence of guilt is strong cannot be subverted by handing the accused to the US Ambassador on recognizance. Furthermore, the US Ambassador and the US Government are one and the same, and any supposed ‘hand over’ is a mere legal illusion.

Pres. Gloria Arroyo must immediately inform the US Government that the Philippines considers the VFA unconstitutional and therefore without effect. She must order her subordinates in the Executive to immediately implement the arrest order of the judiciary, a co-equal branch of the executive. Pres. Arroyo’s persistence in implementing the VFA against the interest of the Filipino people and in violation of the Constitution and her mandate to execute all laws faithfully, only makes her liable for culpable violation of the Constitution and Betrayal of Public Trust. Both are impeachable offenses under our Constitution.


Reference : Atty. Neri Javier Colmenares (Spokesperson)
Date : January 15, 2006