(Published in Viewliner Publication Oct 27 - Nov. 1 2014 Issue)
Due to the recent news with regard to the killing of transgender Jeffrey “Jennifer” Laude allegedly by U.S. Marine Private First Class Joseph Scott Pemberton, the Visitng Forces Agreement (VFA) between the United States of America and our beloved Republic of the Philippines was once again put into the spotlight.
The ultimate question on the matter is, is the VFA really beneficial for our country? First of all, before I make any comment on the VFA, let me clarify that the reason why I am against the international agreement has nothing to do with the killing of Laude, or even the raping of a certain Nicole years back. Let me manifest my utmost belief that these mishaps are but isolated cases and has nothing to do with the inefficiency or the impropriety of the VFA. Assuming that the allegations of the crimes committed by the U.S. military personel are true, such cannot be the basis on judging the VFA as their individual acts has nothing to do with the international agreement between the two nations. Basing one’s hate for the VFA on these isolated cases, if examined clearly will actually fall as fallacious belief in the science of logical thinking.
Nevertheless, for the right reasons, I believe that the VFA is a flawed international document. The good thing maybe that these isolated cases has brought on the issue may be the fact that it made the VFA in the spotlight once again. Senate Committee on International Relations Chairperson Miriam Defensor – Santiago made good and sound commentaries on the matter, I couldn’t agree more to her. What she commented can be said to be a nutshell of a constitutional law lecture, it is well thought of, well said, and well timed as the issue is on the fore.
It is the opinion of the good Senator that under the VFA, the Republic of the Philippines has jurisdiction over the U.S. Marine suspect in the Laude case because the offense is committed within the Philippine territory and is punishable under our Revised Penal Code. However, she was also quick in pointing out the Article 5, Paragraph 6 of the VFA which says that: “The custody of the United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of the judicial proceedings.”
She likewise pointed that the said provision should be compared to another provision within the same paragraph of the VFA which states: “In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account.”
Upon one’s close reading of the provisions, the point of Senator Santiago will be crystal clear, there is a disparity. Our country initially have jurisdiction but, mere request from Uncle Sam, our law enforcement is required to immediately turn over the custody of the American suspects to them. Should the Philippine Government consider the crime committed as an extraordinary one and request to return the custory, the Unites States is not immediately required to grant it, it will only be taken into full account.
Most likely, Uncle Sam will invoke the terms of the VFA in the case of Laude, as what they did in the case of Nicole.
The agreement took effect here in our country back in 1999, I am still trying to think on why our Senators and President at that time allowed this mockery to our Nation to happen. With all due respect to our statesmen in 1999, but isn’t it that in international law the rule is ‘par in parem, non habet imperium (all States are sovereign equals),’ then why did we acknowledged in the VFA that we are inferior to Uncle Sam. As I recall, 6 of them are still in the Senate now, maybe they can tell us their reasons, or at least tell us that they voted no back then as in the case of Senator Santiago.
In a 2009 privilege speech by Santiago, she opined that the VFA should be terminated for it violates the present 1987 Constitution, that requires that the other contracting State should recognize the VFA as a treaty, not as a mere executive agreeement which has a lesser international value. At present, it is only the Republic of the Philippine that considers VFA as a treaty, in so far as Unites States is concerned, it is but a mere executive agreement.
Moreover, applying the legal rule on ‘void for vagueness,’ the VFA should be voided for it fails to define the terms “visit,” “temprorary,” and “activities.” According to the Senator, under the authority of the VFA, American military constitute so-called forward operating bases which are not limited to training and capacity building. They go further by allegedly providing “logistical and intelligence support.” This term is so broad that under U.S. interpretation, it allows actual joining in combat.
In the same speech, Santiago concluded that the VFA is a failure, because after years of its existence, the AFP has not modernized sufficiently to keep up with our Asian neighbors, and the terrorist groups are still active.
Questioning the constituionality and validity of the VFA is actually not new. Back in 2000 the Bagong Alyansang Makabayan, and other militant groups challenged the same before the Supreme Court, their petition was dismissed by the High Court then led by Chief Justice Hilario Davide. A second challenge was made, this time the militant groups was joined in their petition by more personalities in the likes of former Senate President Jovito Salonga, Senator Wigberto Tanada and lawyer Harry Roque. The case was decided in 2009, and again it was dismissed by the court this time led by Chief Justice Renato Corona.
Let me end in categorically stating on what I believe.
I believe that the present VFA is one-sided, prejudicial to our country men, and highly contrary to our nationalistic principles. In effect, the VFA is treating the Filipino people as second class race as it clearly shows that the U.S. has the upper hand. This should not be tolerated, especially by those people who we have put in power believing that they will work for the upliftment of the Filipino Spirit.
Now, should the VFA be terminated? I believe the word terminate is too strong. While we should keep our Filipino Spirits high, we should not be arrogant in thinking that we do not need and assistance from other States. I believe ‘review’ will be the proper word. Our Government should make draft of a VFA that will not mock the sovereignty of our country like what we have now, should the other party not accept our fair proposal, that is the only time that we should be arrogant and show the world what Filipino nationalism is all about.
The VFA should be reviewed by the Philippine Government.
Often recalcitrant, but always principled.