DOJ Opinion No. 094, s. 1998

DOJ OPINION NO. 094 , s. 1998 August 10, 1998 Senator Rodolfo G. Biazon Philippine Senate Rm. D-111, PICC Bldg. CCP Complex, Roxas Blvd. Pasay City Sir : This refers to your request for legal opinion concerning the Visiting Forces Agreement (VFA), specifically, but not limited, to its (1) constitutionality and (2) criminal jurisdiction provisions. LLjur I Salient Features of the VFA As a preliminary, it will be useful to state the salient features of the VFA: A. Scope 1. The VFA covers US military and civilian personnel temporarily in the Philippines in connection with activities approved by the government. 2. Military personnel includes members of the US Army, Navy, Marine Corps, Air Force and Coast Guard. 3. Civilian personnel includes civilians employed by the US Armed Forces or those accompanying them, such as the American Red Cross and the United Services Organization. Not included are dependents of US personnel. B. Passport and visa requirements 1. No passport or visa will be required for the entry of US military personnel but they shall each have a personal identity card. 2. US civilian personnel will not be required to have visas but must have valid passports. C. Criminal jurisdiction 1. General statement of jurisdiction a. RP has jurisdiction over all offenses committed in the Philippines and punishable under Philippine laws. b. US authorities shall have the right to exercise in the Philippines criminal and disciplinary jurisdiction conferred upon them under US military law over US personnel in the Philippines. 2. Exclusive jurisdiction a. RP shall have exclusive jurisdiction over US personnel committing crimes punishable under RP laws but not under US laws. b. US shall have jurisdiction over US personnel committing crimes punishable under US laws, but not under RP laws. 3. Concurrent jurisdiction a. RP shall have primary jurisdiction over all offenses committed by US personnel except those over which the US has primary jurisdiction. b. US shall have primary jurisdiction 1) over offenses solely against the property or security of US Government, or against the property or person of US personnel; and 2) over offenses committed by US personnel in performance of official duty. D. Waiver of criminal jurisdiction 1. Each party may request the other party to waive jurisdiction in particular cases. 2. RP will waive jurisdiction upon US request, except in cases of particular importance to RP. E. Duty Certificate 1. If the offense is duty-related, US military commander will issue a duty certificate and transmit the same to RP authorities. 2. RP and US authorities will consult each other if RP finds need to review the duty certificate. 3. In a non-paper, the US Panel explained the procedure in the issuance and review of a duty certificate. Both RP and US Panels understand that any unresolved issue regarding a duty certificate, waiver of jurisdiction and custody may be pursued at the diplomatic level. LLjur 4. In a side letter, the US Panel clarified that US personnel who are on official leave while in the Philippines will not be covered by the VFA. But those who are on authorized liberty or pass are covered but will not be considered on duty. F. Custody 1. If requested by US authorities, the custody of US personnel shall reside with US authorities from the commission of the offense until completion of all judicial proceedings. 2. In extraordinary cases, the Philippine Government may present its position regarding custody, which the US Government shall take into full account. 3. The US undertakes to make available the presence of the US personnel involved during all stages of the investigative and judicial proceedings. G. Claims 1. There is mutual waiver of claims for damages caused to each other (RP and US) arising from activities covered by the VFA. 2. Claims of civilians shall be settled and compensated by the US Government in accordance with US laws. H. Tax Exemption 1. Property of the US Government imported into, acquired in, or exported from, the Philippines shall be exempt from taxes. Disposal of such property in the Philippines shall be subject to prior approval of the Philippine authorities and to payment of applicable taxes if transferred to a non-exempt person. 2. Property for personal use of US personnel imported into and exported from the Philippines shall also be exempt from taxes. Disposal of such property in the Philippines shall be subject to prior approval of the Philippine authorities and to payment of applicable taxes if transferred to a non-exempt person. II Constitutionality of the VFA The VFA does not violate the constitution. It does not, contrary to the claims of critics, constitute an abdication of Philippine sovereignty. A. The VFA is not an abdication of Philippine sovereignty Critics claim that the VFA violates Philippine sovereignty. This is not true. It is a settled principle of international law that a state, as an exercise of sovereignty, "may, by its consent, express or implied, submit to a restriction of its sovereign rights . . . That is the concept of sovereign as auto-limitation . . . . A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence." (Reagan vs. Commissioner of Internal Revenue, 30 SCRA 968 [1969]). In the early cases of Raquiza vs. Bradford (75 Phil. 50 [1945]), Tubb vs. Gries (78 Phil. 249 [1947]), Miquiabas vs. Commanding General. Phil. Ryukus Command (80 Phil. 262 [1948]) and Dizon vs. Phil. Ryukus Command (81 Phil. 286 [1948]), the Supreme Court held that the Philippines may, by treaty or agreement, allow the United States or any foreign nation to exercise jurisdiction over certain offenses committed within certain portions of its territory. In Dizon vs. Phil. Ryukus Command , the Supreme Court succinctly ruled that "Under the Agreement of March 14, 1947, the United States was given express permission to establish military bases on certain portions of the Philippine territory and to exercise jurisdiction over certain offenses. The rights thus granted are no less than those conceded by the rule of international law to a foreign army allowed to march through a friendly country or to be stationed in it, by permission of its foreign government or sovereign. For this reason, if for no other, the constitutional point raised by petitioner becomes untenable . . . " In the aforesaid Dizon case, petitioner contended that the 1947 Military Bases Agreement was unconstitutional because it deprived Philippine courts of jurisdiction over offenses exclusively vested in them by Article VIII, Section 1 of the (1935) Constitution and violated Article III, Section 1 thereof guaranteeing to every person in the Philippines due process and equal protection of the law. The Supreme Court ruled that this contention of the petitioner was untenable. B. The VFA does not violate the constitutional policy of freedom from nuclear weapons in the Philippines Critics claim that the VFA violates Section 8, Article II of the 1987 Constitution which provides: "Sec. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory." The abovequoted provision does not ban totally and absolutely nuclear arms within the Philippine territory. Whether or not to allow nuclear weapons will be decided on the basis of "national interest" to be defined by the executive and legislative departments. (Concom Records, Vol. IV, p. 814) The provisions bans the use and stockpiling of nuclear weapons, devices and parts thereof (Bernas, "The 1987 Constitution of the Republic of the Philippines: A Commentary", 1997 Edition, p. 66). As explained by Commissioner Azcuna, the provision is "primarily a statement of an orientation, a basic direction in the Constitution, that as a matter of policy, we are against nuclear weapons in our territory. As practiced by other states, that means prohibition not only of possessing, controlling and manufacturing nuclear weapons, but also of nuclear tests in our territory, as well as the use of our territory as a dumping ground for radioactive wastes . . . [the] passage of ships, whether nuclear-powered or nuclear-arms bearing, is left to the determination of every state on a case-to-case basis . It is not per se a violation of a nuclear weapons free zone to allow a ship that is nuclear-powered or bearing nuclear weapons to pass or enter one's territory . . ." ( ibid , p. 818; emphasis ours.) Commissioner Azcuna further commented that there can be deviations from the policy against the presence of nuclear weapons, because this is "not a 100 percent rule". But a deviation "can be justified only on the basis or on the crucible of the national interest". ( ibid .) Under the VFA, the movement of vessels and aircraft within Philippine territory is always subject to prior approval of the Philippine Government and to agreed implementing arrangements. The Philippines can stipulate safeguards and guidelines as it may deemed necessary and appropriate under existing law and consistent with our "no-nuclear policy". In the light, however, of the US policy of neither confirming nor denying the presence of nuclear arms aboard US ships, the Philippines may rely on the good faith of the US in keeping its treaty obligations and may reasonably assume that the US will not intentionally violate our laws or wilfully disregard our sovereignty. C. The VFA is not a basing agreement Section 25, Article XVIII of the 1987 Constitution provides that after the expiration in 1991 of the RP-US Military Bases Agreement, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate, and ratified by the people when Congress so requires, and recognized as a treaty by the other contracting State. The VFA does not contemplate the establishment of foreign military bases or facilities or the stationing of foreign troops in the Philippines. It only envisions temporary visits of US military and accompanying civilian personnel in connection with joint military exercises with our Philippine troops and such other activities as may be approve by the Philippine Government. Thus, it does not contravene Section 25, article XVIII of the Constitution which prohibits the establishment of foreign military bases or the stationing of foreign troops in the Philippines except under the conditions set forth therein. III Provisions on Criminal Jurisdiction, Duty Certificate and Custody A. In general As an exercise of sovereignty, the Philippines may legally waive criminal jurisdiction over certain offenses committed by visiting US personnel. In the early case of Raquiza vs. Bradford (75 Phil. 50 [1945]), it was held by the Supreme Court that the agreement for the stationing of the United States Army or part of its forces in the Philippines implies a waiver of all jurisdiction over their troops during the time covered by such agreement, and permits the commander-in-chief to retain that exclusive control and discipline which the government of his army may require. In subsequent cases ( Tubb vs. Gries, Miquiabas vs. Commanding General, Dizon vs. Phil Ryukus Command, all cited supra ), the Supreme Court had upheld the validity of the RP-US 1947 Military Bases Agreement which allowed the US to exercise criminal jurisdiction over certain offenses committed within the bases. The ruling of the court was made to rest on a settled principle of international law which exempts foreign troops passing through or stationed in a friendly country with its permission from the civil and criminal jurisdiction of that friendly country, and in virtue of the constitutional provision which adopts the generally-accepted principles of international law as part of the law of the land. The ruling also invoked the theory of sovereignty as "auto-limitation" which recognizes the sovereign prerogative of states to impose limitations on the exercise of their otherwise illimitable sovereign powers. B. VFA provisions on criminal jurisdiction and duty certificate The VFA is legally defensible. While the VFA would allow the US to assume criminal jurisdiction in duty-related cases, such assumption of jurisdiction is not automatic but will go through a process which will call for the issuance of a duty certificate and a review of such certificate if objected to by Philippine authorities. The issuance of a duty certificate may be contested by Philippine authorities up to the highest level. C. VFA provisions on custody Under the VFA, custody of the offender US personnel shall reside in the US, if requested by US authorities. The RP, in extraordinary cases, may present its position regarding custody to US authorities, which means that RP may deny the US request for custody in some cases and demand to retain custody of the US offender. D. Diplomatic resolution of issues In all cases involving waiver of criminal jurisdiction, issuance of duty certificate and custody, there is a process of consultation between the US and the RP and any unresolved dispute may be discussed at the highest diplomatic level. IV Other Provisions Other provisions of the VFA, such as regarding waiver of passport and/or visa requirements, tax exemption, claims, place of detention or confinement are not legally objectionable considering that the VFA is envisioned to be a treaty and as such, it is of the same nature as a law and may thus validly amend or modify provisions of existing Philippine laws or grant exemptions from the coverage of said laws. LLjur Very truly yours, (SGD.) JUSTICE SERAFIN R. CUEVAS Secretary