ANALYSIS

VFA: A Threat to All Filipinos

The Philippines hosts United States soldiers allegedly tasked with training their counterparts in the Philippine Armed Forces. Six of these soldiers are accused of raping a 22-year old Filipina—an event that has correctly provoked questions on the wisdom of the Visiting Forces Agreement (VFA).

By Center for People Empowerment in Governance

Posted by Bulatlat

The Philippines hosts United States (U.S.) soldiers allegedly tasked with training their counterparts in the Philippine Armed Forces. Six of these soldiers are accused of raping a 22-year old Filipina—an event that has correctly provoked questions on the wisdom of the Visiting Forces Agreement (VFA).

The Philippine Senate rejected the proposed extension of the terms of the 1947 Military Bases Agreement in 1991. The presence of U.S. troops in the Philippines and their involvement in training and war exercises are supposedly authorized by the VFA, or, as it is officially known, the "Agreement between the Government of the Republic of the Philippines and the Government of the United States of America Regarding the Treatment of United States Armed Forces Visiting the Philippines."

Unlike previous military agreements with the U.S., the VFA supposedly limits the nature of military activities to be held in the country; the number of troops involved, and the duration of the military activities. The Philippines allegedly has criminal and civil jurisdiction over visiting United States personnel.   

There are no basing and access arrangements under the VFA since it pertains merely to "the treatment of United States troops temporarily visiting the Philippines to conduct bilateral exercises with the Philippines." Also under the VFA, "the United States has been made fully aware that the Philippine Government will not allow the entry in Philippine territory of nuclear weapons and other weapons of mass destruction during military exercises." 

This is in consonance with the constitutional principle that "the Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory."  But the constitutional proscription against the entry of nuclear weapons into the Philippines is reduced to an empty phrase unless the VFA guarantees the Philippines the right to inspect visiting US air and sea craft. It does not. 

Despite the claims of its advocates, among whom are Gloria Macapagal-Arroyo and the Department of Foreign Affairs, the VFA also effectively exempts visiting United States personnel from criminal prosecution. Just like the defunct Military Bases Agreement, the VFA in fact compels the Philippines to surrender this sovereign right. The crucial VFA provision on criminal jurisdiction (Article V Section 3 [d]) thus declares:  

Recognizing the responsibility of the United States military authorities to maintain good order and discipline among its forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular importance, it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities receive the United States request.

This provision explicitly declares that the Philippines "will waive" primary jurisdiction. The appended exception is meaningless because in "cases of particular importance" to the Philippines, it can only "request" the U.S. military authorities for recovery of jurisdiction within 20 days. This being a mere "request," the U.S. is not bound to grant it.

If an American soldier or civilian "visits" under the provisions of the VFA and commits a crime, he will thus not be subject to Philippines laws.  He cannot be tried by Philippine courts. He can only be detained in facilities acceptable to the United States.

The VFA has been upheld by the Philippine Supreme Court as valid and constitutional. Nevertheless, the ambiguities of the VFA continue to haunt the Philippines and its people. Only last Nov. 1, six U.S. servicemen who are (or were?) in the Philippines under a VFA activity were accused of raping a 22-year old Filipina student and local tourist inside the Subic Freeport Zone. 

The crime scene was an American naval base prior to the Philippine Senate's 1991 rejection of the 1947 Military Bases Agreement. This would have been an otherwise uncelebrated criminal case of gang rape – to be sure, deemed by law as a heinous crime in the Philippines. But the offending parties have yet to be interrogated by Philippine prosecutors, thanks to, among other factors, the failure of the appropriate officials to take them into custody, and to even communicate to the US its view that the case is "of particular importance."   

Under Philippine law, the offenders should be held in a Philippine facility under a no-right-to-bail provision of the Philippine Constitution. But the six US Marines are not in Philippine custody-allegedly because, said Secretary of Justice Raul Gonzalez in a TV interview, taking them into custody would have required the construction of special facilities-implying that while Philippine detention facilities are good enough for Filipinos, they are not suitable for US troops!!

And yet the Philippine government proclaims that the VFA is a fair agreement that does not degrade the country's sovereignty even if the mere presence of foreign troops is the most blatant expression of that degradation. The challenge to the Philippine government is to defend and enhance Philippine interests and the rights of its citizens to be free from the depredations of foreign troops in their own country. But given the obvious inability of its officials to do so—and their colonial willingness to accommodate US wishes at all costs - the only alternative is for the people themselves to demand the abrogation of the agreement as an offense to their sovereign rights and as a threat to every Filipino. Posted by Bulatlat

CenPEG is a public policy center set up shortly before the May 2004 elections to help promote people empowerment in governance and democratic representation of the marginalized poor in an elitist and patronage-driven electoral and political system.  It conducts research/policy study, education and trainings on governance and people empowerment.  To pursue its programs in research and education-training, CenPEG taps a wide pool of political analysts, public policy experts and academic scholars for their expertise and experience in public governance as well as in grassroots empowerment. 

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