Should we now junk the VFA?


The murder of a “transgender,” Jeffrey “Jennifer” Laude, in Olongapo City, for which US Marine Private First Class Joseph Scott Pemberton has been accused and arrested, has revived calls for a review of the 1998 Philippine-US Visiting Forces Agreement. Some have called for the scrapping of the treaty altogether. This comes as no surprise, but it would be good to see these calls grounded on the most compelling reasons, not just on a Marine’s sexual adventure that ended in a murder most foul.

Murder most foul is murder most foul in any language, regardless of the identity of its victim or perpetrator. Thus, if the 19-year-old Marine is guilty of murder, he should suffer the full consequences of his crime. The Manila government should make sure the law is followed and justice is done; it should oppose any effort on the part of the US government, if there be any such effort, to protect the guilty from the effects of his crime.

But it cannot, and we cannot, make the US government responsible for a private crime committed by any of its citizens, even if they are part of its Marine corps. Nor should it make the VFA the perpetrator of this crime.

Still, the two governments have to do better than they did when they first had to deal with the famous Subic Bay rape case in 2005. In November of that year, a Filipino woman named Suzette Nicolas accused US Marines Chad Carpentier, Dominic Duplantis, Keith Silkwood and Lance Corporal Daniel Smith of gang-rape, inside a moving van at the Subic Bay Freeport. She eventually changed her story to say that Smith alone had committed the rape, while the rest watched and cheered him on.

Under the treaty, the Philippine government had jurisdiction over the case, but the US government could exercise custody over the accused, and did. This provoked angry demonstrations. On Dec. 4, 2006, Judge Benjamin Pozon of the Makati Regional Trial Court 139 convicted Smith and sentenced him to 40 years imprisonment inside a Philippine jail. But the US government refused to turn him over to the Philippine government. This fueled continued demonstrations.

Then on April 4, 2009, the Court of Appeals, led by three women justices–Justices Monina Arevalo Zenarosa, Remedios Salazar Fernando and Myrna Damaranan Vidal— reversed the RTC ruling, saying that “a careful and prudent perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused.” Smith was released, the alleged rape victim got a US visa and migrated, and the controversy over criminal custody and jurisdiction died down, without being addressed in the context of the treaty.

The Pemberton case resurrects the old controversy. It should give the two governments the motivation and the opportunity to resolve the contradiction in favor of right reason and the law. There should be no doubt that if the Philippine government has criminal jurisdiction under the treaty, being sovereign and not inferior to the US, it should exercise the right of custody, unless for any reason it waives such right in favor of the US. During the Cory Aquino administration, the government, in derogation of its sovereignty, called upon the US to prosecute Ferdinand and Imelda Marcos for alleged crimes committed against Filipinos in the Philippines. Thus Imelda had her famous trial in New York, where she was acquitted, and an American judge ruled that monies recovered from the Marcos estate, which should otherwise belong to the Filipino people, should be used to indemnify “victims” of human rights abuses during the Marcos years.

But that said, we need to take into account certain realities. Given the appalling condition of Philippine prisons and other public facilities, the government may not be able to guarantee the security and safety of an American detainee in its custody, especially if there are active threats to his security and safety. This would require enormous logistics out of all proportion to what the government has to spend, under current standards, in maintaining all other detainees. This could create a case of extra-special treatment for the American, and infinitely aggravate the charge of discrimination that has been raised by the Left in favor of the three opposition senators now detained on plunder charges in facilities outside the usual government detention centers. But it would still not guarantee absolute security and safety for the American detainee.

The recent arrest and detention of Maj. Gen. Jovito Palparan (retired), long wanted for his alleged role in the “disappearance” of some “student activists,” illustrates this point only too well. Although Palparan insists on his innocence, the reason he said he had gone missing for years was his fear of being killed in jail by the communists. His capture only magnified that fear, so he insisted that he be given adequate protection, and the military had to provide it. An American detainee facing possible rubout in jail would need even more protection, simply because the accountable government cannot afford the fallout from any such incident.

The last American military official to be killed on Philippine soil was Col. James Nicholas Rowe, former head of the Army Division of the Joint US Military Advisory Group. He was killed in 1989. Rowe was one of only 34 US prisoners of war who had succeeded in escaping from their captivity in Vietnam. He developed the “Survival, Evasion, Resistance and Escape” program for the US military as a result of his experience. However, on April 21, 1989, the Alex Boncayao Brigade ambushed him on Timog and Tomas Morato Streets in Quezon City, firing 21 .45 caliber pistol and M-16 rifle shots into his armored vehicle. One round entered the unarmored portion of his vehicle, hitting him fatally in the head.

Although Rowe’s security and safety was not a responsibility of his host government, his murder became a grave embarrassment to the Cory Aquino administration. Nothing like this should happen again.

Learning from the past, the Philippine and US governments could explore the possibility of exercising joint custody of Pemberton. This is not provided in the VFA, but it is not prohibited either. With sufficient goodwill and resolve, the two governments could work out the relevant details. Any further need to improve the relevant provisions of the VFA will have to proceed from there. But Senator Miriam Defensor Santiago and the Leftist contingent in the House who have issued public pronouncements on the matter will have to realize that treaties like the VFA are negotiated or renegotiated by the Executive Department, never by the members of Congress.

True, the Senate concurs in the ratification of treaties, and for that reason shares in the treaty-making power of the President. But it cannot dictate anything on the President, especially one who is now in full control of the two Houses of Congress. It could pass some resolutions, but these resolutions can only exert moral suasion on the Executive, never define his options, even if approved by all the members of the chamber. A House resolution, such as the one filed by the Leftist contingent, has even less chances.

Sad to say, Miriam Santiago and her colleagues completely missed the boat when they failed to say anything after President B. S. Aquino 3rd decided to enter into an Enhanced Defense Cooperation Agreement with the US, without Senate advise or consent. Even among those who believe the EDCA is a timely response to the new security environment in the Asia Pacific, conviction runs high that it should not merely take the form of an Executive Agreement, which could be denounced and terminated by an unsympathetic President as soon as Aquino leaves office. It should instead take the form of a treaty concurred in by the Senate, if only to comply with the Constitution, and express the full backing of the entire Republic, including the electorate.

Now, even among those who believe the text of the VFA should now be updated, serious doubt exists that those who want the treaty scrapped know exactly what they want. The original purpose of the VFA was to provide a legal regime under which US military troops could continue to visit the Philippines under the Military Defense Treaty, which authorizes such visits, after the US military bases were shut down in 1991. If the VFA has proved inadequate or incompetent to carry out its declared objective, then the parties have an urgent duty to replace it with something else more effective.

But to scrap it, as some otherwise responsible politicians would suggest, is to cut off one’s nose to spite one’s face, as the saying goes. That would be to give way to a political tantrum or an emotional outburst, not to a rational imperative. This would be to misunderstand gravely some of the most fundamental facts about the Philippines. The country’s security and defense alliance with the US is one of the more obvious foundations upon which this supposedly democratic and republican state rests, and from which it seeks to discharge its duties to its own people, and to the peoples of the region and the world. It may not be permanently carved in stone, but any attempt to question or alter it should be based on solid and unimpeachable grounds, and openly and vigorously aired, argued and debated, not just among those who lost the Cold War and failed to install a communist government. It cannot be presented merely as a necessary side-effect of a despicable murder that happened on a young Marine’s wicked night out.


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  1. My friend..what year you were born…1930yish, 1940yish…are you sure here in PI? If yes consider the thought of you still arrogantly wielding your pen today without the GIs or at the end of a Japanese bayonet ala shish kebab. You gain your life and you should be thankful to anyone who made it happened. Ok take your pen and write THANK YOU GIs but…….you can fill these with good natured commentaries and not thought provoking columns devoid of the big picture.

    • The Americans don’t fight wars without an agenda of their own, its never just about maintaining peace, the world war 2 death toll ratio was at least 10 Filipino for every 1 american. I guess we should be thankful that the Americans chose to rehabilitate Japan after the war than extend a helping hand to the Filipinos who bled and died with them in the war. Oh, wait.

  2. Junk the agreement as every time there is a problem with any american citizen this is what you all call for. So junk it, & when they arnt there to help you dont complain. The us would be better off keeping out of the philippines & to just let you get on with it. I wonder if you ever look at how many filipinos commit every single type of crime in the us. Do you see people here demonstrating in the streets about that, no of course you dont as its filipinos against foreigners. As a country you practice discrimination against foreigners here. For instance foreigners cant buy a house here, but filipinos can buy a house in my country. To join my local golf club its cheaper for a filipino as they say we are trying to encourage more filipinos to be members, i wonder if you in my country would accept that excuse. Of course you wouldnt but you agree with it here in your country. You have double standards as when a f… (Warning. Word is racially derogatory – Mod) commits a crime in my country your legal people do your best to help your countryman, well america is only doing the same thing. I wish america would just let you go & stop allowing (Racially Derogatory term) to move there then you would soon want to make another agreement with them.

    • Dusty, it isn’t an issue of race, you could come from mars for all we care just don’t go off siphoning our natural resources, spying on us or building bases within our territory just so you could spy on our neighboring countries, because if that’s what you’re here in our country for, then we don’t need your help. We didn’t ask for your “help” the current ruling elite in our country did, and if we put our minds to it i’m sure we can help ourselves. So you can get out, we don’t want you here.

    • Yes, I really wish you americans will leave us alone. If that ever happens, its a guarantee that in a few years we will be sending you aid for your needy, no strings attached.

  3. jose hernani m. parco on

    why can’t we get exactly the same treaty as what the Japanese get?! or South Korea? or is it because our govt. is so weak? and sissy?!

    • Japan, Korea, Germany, England, Spain, Italy, Holland, Singapore, Kuwait, UAE, Bahrain, Djibouti, and other countries that have permanent U.S. bases have very similar Status of Forces Agreement (SoFA) with the USA. The Philippines does not have this agreement because the US does not have a permanent US base in the Philippines.

  4. These series of military exercises are a series of provocations and does not sit well if ever we must develop a friendly relations with our neighboring countries. It demonstrate arrogance and only serve as a magnet for neighboring countries to aim their targets. Being a tiny and developing country it is best to be neutral and realistic distancing ourselves from such militaristic activities. Let us focus all our military resources against the establishment of a caliphate in our country. If ever we need america to defend us, let a treaty be made where american senate gets involve .Laude case serves only to call our attention on this matter of great importance to our security within the region..

  5. Dominador D. Canastra on

    Very correct and balanced presentation, by a columnist whose mind is that of a patriot and statesman. Congratulations, Sir Tatad.

  6. “National Security” is number one duty of the President. Let us not confuse the issue with criminal offense. If a foreigner is accused of criminal offense, then try him/her in the criminal court.

    Sorry to say that our government does not have the capability to defend our country from foreign invaders. The Armed Forces and the Phil. National Police are ill equiped.Therefore, our government have to have armed treaty with strong nation such as U.S, Great Britain, Japan, Australia and other friendly nation.

  7. Congratulations Mr. Tatad. For the first time you made a good commentary. An objective one that only intellectuals will understand it.

  8. gabriela silang on

    junking the vfa is next to impossible. what with a subservient pres and an equally submissive people to the whims of uncle sam. it’s very unfortunate that we haven’t grown out our colonial mentality….that everything american is good…that we still regard ourselves as inferior. after all the blood. sweat and tears of our forebears in the name of independence, we are struck still to the old colonial mentality….just how much death, humiliation and degradation do we need to come to our senses that the philippines is a sovereign republic free from the clutches of the US? unless and until we grow the balls to say enough is enough, let’s not waste our time and energy putting up a facade of an independent republic.