Friday, October 24, 2014

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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