Press Release
June 1, 2006


Sen. Miriam Defensor Santiago, chair of the Legislative Oversight Committee on the VFA (LOVFA), said at a public hearing held yesterday (Thursday), that the controversial RP-US exchange of notes on the Security Engagement Board (SEB) will need Senate ratification, and that she will sponsor a resolution declaring the sense of the Senate to this effect.

Under President Arroyos Memorandum Order No. 212, the exchange of notes entered into force on 12 April 2006.

Santiago, an international law expert, cited the Constitution, which provides: No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.

Assuming arguendo that this is not a treaty, it is still an international agreement and therefore, needs Senate ratification before it can be effective, Santiago said.

Santiago invoked the principle of statutory construction, providing that where the law does not distinguish, we should not distinguish, quoting in Latin: Ubi lex non distinguit, nec nos distinguire debemus.

The senator said the Supreme Court applied this principle in the 1995 case of Ramirez v. Court of Appeals, the 1995 case of Pilar v. Comelec, and the 1992 case of Peralta v. Civil Service Commission.

Santiago said that the Philippine note specifically stated that it shall constitute an agreement between our two governments.

Critics have called for Senate ratification, because the exchange of notes broadens the legal scope of security cooperation under the 1951 RP-US Mutual Defense Treaty.

While under the original treaty the legal scope was only external armed attack, under the exchange of notes, the scope of cooperation is extended to so-called non-traditional security issues, such as international terrorism, transnational crimes, threat to maritime safety and security, natural and man-made disasters, and the threat of a pandemic outbreak.

Santiago said that the non-traditional concerns could even be interpreted to include health, financing, disasters, money laundering, small arms smuggling, piracy, and human trafficking.

The exchange of notes provides for the principle of enhanced cooperation, but this principle could be used by the US to participate in decision-making mechanisms of the Philippine government, she said.

Santiago warned that US meddling in Philippine government could be done under the so-called principle of responsibility to protect, and the so-called principle of right of human intervention.

The exchange of notes states that the new security arrangement will be observed within the framework of the 1999 RP-US Visiting Forces Agreement, by providing that the establishment of the Security Engagement Board implements the provisions of the VFA.

The exchange of notes indirectly extends the application of the VFA to US military forces who might participate in exercises in Philippine territory that address non-traditional security issues. The important consequence is that American military personnel who are accused of committing offenses in the Philippines will also benefit from the VFA provisions on custody, Santiago said.

Santiago said that unlike prior agreements such as the VFA and the Mutual Logistical Support Agreement which both implement the basic Mutual Defense Treaty, by contrast the exchange of notes adds the new purpose of cooperation in addressing non-traditional security issues.

The exchange of notes does not merely implement the VFA, but seems to be an indirect attempt to make the VFA applicable to US military personnel participating in military exercises in the Philippines for a wide variety of purposes other than those allowed by the Mutual Defense Treaty, the senator said.

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