A DECADE OF US TROOPS IN MINDANAO: Revisiting the Visiting Forces Agreement (2)

2nd of three parts

Singapore solution

On 13 September 1991, the Philippine Senate, voting 12-11, rejected the renewal of the Military Bases Agreement.

Nationalists called it a most glorious moment in Philippine history. But their victory would proved to be short-lived. As international law expert Professor Merlin Magallona warned even before the Senate voted on the bases, the US would resort to a “Singapore solution” to stage a comeback.

Since the 1960s, Singapore has allowed US Navy ships to use its port for repairs and other purposes. A memorandum of understanding signed by Vice President Dan Quayle and Prime Minister Lee Kuan Yew on 13 November 1990 granted the US Air Force short-term use of the Paya Lebar airfield. This gave US troops a fallback position after they left Clark and Subic.

As early as 1990, the US had envisioned “access” as a new approach in maintaining its presence in Southeast Asia. Instead of permanent bases the approach seeks bilateral arrangements – like those with Singapore – for training, exercises and interoperability to allow for uninterrupted forward deployment in the region. Besides, their continued presence in the region assures faster response to developments in flash points in the eastern hemisphere.

Thus, the US sought and was granted access privileges in the Philippines via the VFA, a development that has not only sparked debates on the constitutionality of renewed US military presence but also influenced the dynamics between the Philippines and China in relation to the disputed Spratly Islands.

VFA ratified

There are actually two sets of the VFA. One covers the treatment of US forces coming to the Philippines for joint military exercises, and was signed on 10 February 1998 by then foreign affairs secretary Domingo Siazon Jr. and US ambassador Thomas C. Hubbard. “VFA 2,” as the second set is called, was signed by the same officials on 9 October 1998 and deals with the treatment of Filipino military personnel in the US for training and related activities.

Then president Joseph Estrada pushed for Senate approval of the treaty, saying it is merely an implementing mechanism for the 1951 Mutual Defense Treaty. Estrada and his defense secretary Orlando Mercado were among the 12 senators who voted against the renewal of the MBA.

On 27 May 1999, the Senate, voting 18-5, ratified the VFA. But in a Philippine Star report (24 September 2009) Senator Miriam Defensor-Santiago said that only VFA 1 was submitted for ratification.

Santiago, one of those who voted for the VFA, was quoted in the same report as saying that while VFA 1 is already lopsided, VFA 2 is worse for granting certain privileges to the US, which are not granted to the Philippines. She cited that one of the “non-reciprocal” provisions of VFA 2 pertains to the right of the US to detain in its embassy, not in Philippine jails, an American soldier accused of crimes.

The ‘Nicole’ case

The rape of a Filipina, “Nicole,” at the Subic Freeport in November 2005, allegedly by four US servicemen, revived debates on whether the VFA does not violate the Philippine Constitution and judicial processes. At the center of the controversy was the question of jurisdiction and custodial rights over the accused since they were not detained while the case was being heard.

Section 1(a), Article V (Criminal Jurisdiction) of the VFA provides: “Subject to the provisions of this article, Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.” [Italics mine]

Yet Section 6 of the same Article gives US military authorities the right to take custody of their personnel accused of crimes “from the commission of the offense until completion of all judicial proceedings.” Further, local courts are given only a year to resolve a case after which the US could no longer be obliged to produce the accused to face judicial proceedings.

Lance Corporal Daniel Smith, the only one of the four accused convicted of the crime, evaded serving his sentence owing to another loophole in the VFA. Section 10, Article V provides: “The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities.”

It appears that the term “facilities” does not refer alone to regular jails. Right after Smith’s conviction then foreign affairs secretary Alberto Romulo and US ambassador Kristie Kenney signed an agreement that the convict could be detained in the US Embassy. Afterwards, police operatives taking orders from the Department of Interior and Local Government sprang Smith from jail in the dead of night. [H. Marcos C. Mordeno/MindaNews) [To be continued]