Lopsided agreement

At the height of the debate on the Visiting Forces Agreement (VFA), one of the most important issues that came up specifically centered on the occurrence of a theoretical case involving the rape of a Filipina by servicemen of the Visiting American Forces. The bone of contention at that time centered on the issue of whether US military personnel who happen to be a part of the visiting contingent could be prosecuted for such crime of rape committed on Philippine soil. Many (including myself) opposed the VFA mainly because of the fear that it may be used by US military personnel accused of a crime committed here to escape or evade prosecution. That hypothetical incident has now become an actual case when a twenty three year old Zamboangena who was vacationing in Subic Freeport was allegedly gang raped by five American Servicemen last November 1, 2005.

If the fear expressed at that time was properly addressed, there should be no problem now regarding the prosecution of the suspects and their eventual punishment once found guilty. The crime was committed within the Philippine territory and the victim has already filed her complaint before the Olongapo City Prosecutor. Under our rules, the suspects should have been subjected to an inquest by the prosecutor and the appropriate charges filed in the proper court based on her sworn complaint, the affidavit of the driver and the medico-legal report showing that her injuries were consistent with rape. These sworn statements and report are enough for the judge to find probable cause and issue the warrants of arrest. In fact our Honorable Secretary of Justice precisely gave this instruction to his prosecutor in Olongapo City. Unfortunately, the instruction could not be carried out in the very land where he is the Secretary of Justice. Why? Because the suspects are not Filipinos but US military personnel and the incident is covered by the VFA.

It is true that the VFA recognizes the jurisdiction of our courts to try and decide cases involving the crimes committed on Philippine soil by visiting American servicemen like the alleged rape perpetrated on a Filipina last All Saints Day in Subic. But such jurisdiction merely refers to the subject matter of the case, or jurisdiction over the crime committed. It can be effectively exercised only if the courts also have jurisdiction over the person/s who committed the crime. In other words, our courts must also have the power to arrest the accused and placed them under its custody so that if found guilty after trial, the sentence against them can be imposed and carried out. Justice in this rape case may be achieved only if our courts acquire jurisdiction not only over the crime but also over the person/s who committed it. Sad to say however, the VFA explicitly provides that "the custody of any US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with the US military authorities from the commission of the offense until completion of all judicial proceedings". In this case where the crime allegedly committed may even carry a death sentence and therefore non-bailable, it means that the American suspects will never land in our jails and taste the harsh and jarring conditions therein. Instead, they will enjoy the air-conditioned comforts of the US Embassy quarters like what is really happening now. If the accused were Filipinos, they will now be clamped down in our decrepit detention centers.

Aggravating the situation is that the US cannot be compelled to surrender custody even if a warrant of arrest is issued by the judge. We can only request the Americans to make them available for any investigative or judicial proceedings. As our DOJ Secretary lamely admits, "this is still subject to a dialogue between the DFA (Foreign Affairs Dept) and the US. Under the VFA, we basically waive custody to the US except in cases which are of such importance to our country, in which case we must…. submit a written request within 20 days". Undeniably, the provisions of the VFA in this regard have embarrassingly pictured our country as a land where its court orders and processes are enforceable within its territory only through pakiusap. Indeed, the VFA has even fixed a deadline of one year for our courts to terminate the trial otherwise the US may no longer be held responsible for making the accused available for the judicial proceedings. At the pace our wheels of justice grind, it is highly probable that the accused servicemen may eventually escape prosecution for this crime of rape committed within Philippine territory.

In this latest Subic incident, a rape can be said to have been committed not only against a Filipina but against Philippine Sovereignty because of a one sided Agreement where aliens enjoy better rights than Filipinos in terms of the right to liberty and right to a speedy trial. This is a golden opportunity for our government to notch significant political mileage. It can win the admiration of the greater number of Filipinos and make a deep impact by being firm in obtaining custody of the accused despite the existing lopsided VFA and then subsequently get the US to agree to an amendment thereof, by eliminating the biased provisions or at least make them clearer so as not to be misinterpreted against our interest as a sovereign nation.

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