VFA: US cloak of impunity

By Carol Pagaduan-Araullo
Streetwise | BusinessWorld

The Philippine government’s quick and, some say harsh, handling of the crew of a grounded Chinese fishing vessel at the Tubbataha Reefs, a UNESCO World Heritage site and a protected marine reserve by Philippine law, in contrast to the soft and tentative response to the grounding of the USS Guardian in the same area, shows that the issues involved are much bigger than environmental damage.

What Malacañang is concealing from the public is that the Guardian did not have the required permission to enter the Tubattaha Reef reserve, and its crew aimed their weapons at Philippine authorities, preventing them from boarding the ship after being warned by the latter that they were violating Philippine law.

Moreover, the US has not given any credible explanation as to what a US Navy minesweeper was doing at the Tubattaha reefs in the first place, and Malacañang apparently is not interested in one. An early US statement that the Guardian was en route to Indonesia after a port call in Puerto Princesa and strayed into the area accidentally because of faulty navigational maps stretches the credulity of the public. The USS Guardian, an Avenger Class ship designed and equipped with state-of-the-art sonar and other hi-tech navigation equipment in order to perform its counter-mine warfare missions could not possibly have been “lost” in the high seas.

Neither can the US and Malacañang claim that the Guardian was “here with permission” on the basis of the Visiting Forces Agreement, as though the VFA, even assuming without granting that it is constitutional, grants blanket permission or authority for any US Navy vessel to be anywhere in Philippine territory at any time.

A recent petition for a Writ of Kalikasan filed by bishops, environmentalists, activists and lawyers at the Supreme Court over the grounding of the US minesweeper “raises novel questions because it presents a nexus between the environment and foreign military troops.”

The petition is a plea for the court to order the respondents to take remedial actions on the damage they have caused to the environment to the detriment and in violation of the rights of communities in the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi and of petitioners to a balanced and healthful ecology.

Malacañang says there is no special treatment for the Guardian crew; that the two grounding incidents at the Tubbataha Reefs are qualitatively different. There is a presumption of regularity or legality in the case of the Guardian’s presence in Philippine territorial waters because the US is an ally and existing treaties like the Mutual Defense Treaty and Visiting Forces Agreement (VFA) allow it. The Guardian’s intrusion in the Tubbataha restricted area is just an unfortunate accident.

In the case of the Chinese vessel, it is a flagrant case of illegal entry into an off-limits area and is presumed to be another incident of poaching in Philippine waters absent any evidence to the contrary.

Consequently, President Noynoy Aquino has stated in no uncertain terms that the detained 12 Chinese fishermen must be prosecuted to the full extent of the law. The government has rebuffed attempts by Chinese embassy officials to have the fishermen released to their custody, much less repatriated to China.

On the other hand, the Executive is content with merely asking the US government to pay a fine estimated to amount to $1.4 million for the damage inflicted on the reefs by the US Navy warship. The erring commander and crew of the Guardian were allowed to be immediately taken away from the country with nary a protest or any attempt by Philippine authorities to gain custody. The investigation of the incident has been controlled by the US government from Day One. The damage assessment done on the reefs by experts included US government representatives who have an interest in minimizing the same. The entire salvage and removal operations were under the strict command and control as well of the US Navy.

If it didn’t happen so soon after the USS Guardian grounding, the firm response of Philippine authorities to the latest incursion of a purportedly Chinese fishing vessel would have been unqualifiedly laudable. In light of many antecedents and the ongoing dispute with China over rich fishing grounds in the Spratlys, the Aquino government stands on good ground in arresting and filing appropriate charges against the Chinese crew members. And since the vessel is declared to be a private commercial venture, its owners are certainly liable for the damage on the reef and must pay corresponding fines. We expect the Chinese government to be cooperative in this regard.

What is unacceptable is the complete surrender of national sovereignty in the case of the USS Guardian. Even under the VFA, there is no immunity from suit for members of the US Armed Forces who have violated Philippine laws within our national territory. And yet the Aquino government has not acted swiftly and judiciously to execute applicable laws starting with its basic duty to conduct a thorough investigation and hold in custody those directly culpable.

The suit Arigo et al. vs. Swift et al (Palawan Bishop Pedro Arigo is lead complainant while Vice-Admiral Scott Swift is US 7th Fleet commander at the head of those charged) points to egregious violations of Philippine law, national sovereignty and territorial integrity and calls on the Philippine courts to “assume jurisdiction over the crimes of unauthorized entry and disturbance of marine life; obstruction of justice for refusal to allow the local Coast Guard to properly board the USS Guardian as per protocol; unlawful anchoring; and dumping of waste under the Tubbataha Reefs Natural Park Act of 2009, or Republic Act No. 10067.”

The Petition for Writ of Kalikasan cites a number of precedents established in international law as well as US and Philippine jurisprudence to argue that USS Guardian and US 7th Fleet commands’ violations with regard to the USS Guardian grounding and subsequent salvaging operations are triable in Philippine courts.

We recall in particular the case vs. US Marine Lance Corporal Daniel Smith, whose conviction was upheld and whose detention under Philippine authorities was ordered to be negotiated with US authorities by the Philippine Supreme Court. (Unfortunately this ruling was rendered moot by the collusion of Malacañang and US embassy officials to move Corporal Smith from a Makati jail to the US embassy premises and the subsequent Court of Appeals decision overturning a lower court’s guilty verdict.)

The whisking away of the Guardian crew also recalls several instances in the past where US personnel are pulled away out of the reach of Philippine authorities. Most of these are military personnel, and the most notable exception is one Michael Meiring, a suspected CIA operative who accidentally detonated a bomb he was fabricating in a hotel room in Davao City and who was flown out escorted by US embassy and FBI men before the local police could arrest him.

In all instances, US authorities have made a mockery of Philippine sovereignty and criminal jurisdiction with impunity, and not without a large dose of complicity of Philippine officials all the way up to Malacañang.

It was easy enough for them when they had the US military bases as “inviolable US territory.” After the bases were thrown out in 1991, it is now the VFA which is being used and abused, to allow US transgressors to escape prosecution under Philippine law.

Published in Buisness World
18 Arpil 2013

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