Among the first to file petitions before the Supreme Court questioning the constitutionality of the VFA were the Bagong Alyansang Makabayan, the Philippine Constitution Association, and Senators Teofisto Guingona Jr., Raul Roco and Sergio Osmena III.
The court voted to dismiss the consolidated petition. Then Associate Justice Reynato Puno wrote a dissenting opinion, and he was joined in by two other justices.
Another petition was filed in January 2007 by Bayan and former Senate president Jovito Salonga in relation to the “Nicole” rape case. Again, the Supreme Court voted 9-4 to dismiss the petition with two justices inhibiting in support of the earlier decision upholding the VFA as constitutional.
On 23 September 2009, the Senate passed on second reading a resolution urging the Arroyo administration to terminate the VFA if the US would object to a renegotiation of the agreement. Senator Miriam Defensor-Santiago, author of the resolution and one of those who voted for the VFA, said the pact is not beneficial to the Philippines and violates the Constitution.
Santiago questioned the validity of VFA 2. She said it violated Senate Resolution No. 18, which concurred with VFA 1, but barred the president from unilaterally binding the country to “any amendment of any provision of the VFA.” She noted that, unlike VFA 1, VFA 2 contains a provision for supplementary agreements.
In calling the VFA unconstitutional, Santiago cited, among others, the non-recognition by the US of the agreement as a treaty, the “vagueness” of terms like “visit,” “temporary” and “activities,” the participation of US troops in actual combat in the Philippines in the guise of military exercises, and the indefinite stay of 500-600 US troops in the country.
Aside from Santiago, militant groups like Bayan have pointed out that the indefinite stay of US forces already contravenes the essence of the VFA, and violates the constitutional ban on the presence of foreign troops.
Santiago added the VFA has not led to the modernization of the Philippine armed forces, which she said only receives US military junk. She said the Philippines, supposedly a major non-NATO US ally, was not among the top ten recipients of US military aid.
The US however sounded lukewarm to the Philippine Senate’s call for review. Visiting the Philippines in November 2009, State Secretary Hillary Clinton refused to answer the points raised by Santiago, and simply said the accord is an “important expression of partnership based on mutual respect and interest.” She added the US will continue helping the Philippines in its fight against terrorism.
China meanwhile has expressed displeasure over the holding of another round of Philippines-US joint military exercises or Balikatan 28, which opened on 16 April in Palawan and involved some 4,000 US troops and 2,000 Filipino soldiers.
“The major trend of the times in this region is peace and development. Military exercise does not represent the major call of the times,” reports on April 16 quoted foreign ministry spokesman Liu Weimin as having said in Beijing.
Malacanang has denied the exercises were meant to be a show of force amid tensions between the Philippines and China over a standoff at the Scarborough Shoal in the Spratlys. The standoff began on 8 April, when Philippine Navy men tried to arrest Chinese fishermen poaching in the shoal.
Both countries have traded tough words since, starting with the mutual demand for the ships of the other party to leave the shoal.
The Philippines has insisted on bringing the conflict to the International Tribunal on the Law of the Seas. But on 23 April, the Chinese Embassy in Manila said Beijing has decided with finality not to join the Philippines in bringing the dispute to international arbitration.
US troops here to stay
Calls by the Aquino administration for a review of the VFA have hinted that abrogating the pact is not among the options. As Secretary del Rosario himself confirmed, the Philippines and the US are currently exploring arrangements for increased US military presence in the country.
In an earlier statement, del Rosario maintained: “It is to our definite advantage to be exploring how to maximize our treaty alliance with the United States in ways that would be mutually acceptable and beneficial.”
Bayan Muna’s Casiño, noting that the Philippines wanted to exploit the VFA as a deterrent to further Chinese aggression in the Spratlys, disagreed: “While we condemn China’s intrusions in our territory, we are equally apprehensive of American expansionism in the region. These two super powers are both friends and enemies, depending on our national interest. What is important is that we are neither pushovers of China nor pawns of the US.”
“This matter is best settled between China and the Philippines through diplomatic means and using the international conventions. We do not need another bully like the US in our backyard,” he added.