VFA: Who’s to blame?

When former Vice President, then Senator, Tito Guingona saw the draft of the Visiting Forces Agreement (VFA), he immediately rejected it saying it infringes on our sovereignty. At that time, many people thought Tito Guingona was being too nationalistic and too anti-American. In fact, when he was concurrent Secretary of Foreign Affairs, he wanted to confine the American troops inside designated camps and make the rules a little more stringent. His perennial run-ins with GMA over the VFA ultimately caused their parting of ways and cost him his job as Foreign Secretary. Specifically, his main concern was Article 5, Paragraph 6 of the VFA which clearly states: "The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings." As a lawyer, Tito Guingona immediately saw that a criminal case committed within Philippine shores should automatically give custody of suspects to the local courts. But the VFA obviously gave the Americans a lot of leeway, "if they so request." Today, he was proven right. It is now the bone of contention surrounding the VFA.

In 1998, when the VFA was being pushed by then US Ambassador Thomas Hubbard, President Joseph Estrada was eager to have it ratified by the Senate. If one could recall, he was one of those who voted against the retention of the bases in 1991. But this time, he felt that we needed the Americans more in our external security and in modernizing our armed forces. Erap used all his political capital with the Senate then and got a majority of the Senators to pass the VFA. One of his point men was Frank Drilon, who pushed hard for the VFA together with the late Senate President Marcelo Fernan. Ironically today, Drilon is very much against the VFA. The others who voted for it were Blas Ople, Rodolfo Biazon, Kit Tatad, Ramon Magsaysay Jr., Robert Jaworski, John Osmeña, Juan Flavier, Juan Ponce Enrile, Tito Sotto, Ramon Revilla, Tessie Aquino-Oreta, Robert Barbers, Rene Cayetano, Nikki Coseteng and Gringo Honasan. Another one who is so vocal today in scrapping the VFA is Miriam Defensor-Santiago, who also voted to pass the VFA.

Those who rejected it outright were Tito Guingona, Raul Roco, Serge Osmeña, and Nene Pimentel, together with Loren Legarda who totally refused because she believed the sovereignty of the Philippines was at stake. As a matter of fact, former President Estrada tried to use her husband Tony Leviste to influence Loren Legarda to change her position. But she adamantly refused, allegedly making Tony Leviste cry on the shoulders of one of Erap’s classmates saying, "What will happen to my deal with the President?"

So now, who is to blame for this whole custody issue? Perhaps the real solution would be to follow the interpretation of former VFA Commission executive director Amado Valdez on Article 5, Paragraph 6, that the warrant of arrest would be served, the accused would be arraigned, and then they would be remanded in the custody of American military authorities.

The terms also called for a one-year period by which the case should be finished, otherwise the custody issue becomes even more difficult, giving the US no obligation to produce the accused for trials and investigations. The American soldiers can go back to wherever they’re supposed to be serving. The US refuses to be a signatory to the International Criminal Court (ICC) because it could pave the way for the filing of frivolous and politically-motivated cases fueled by anti-American sentiment. That’s how protective the US government is of their soldiers. And if the guilty verdict ever comes out in this case, we will have to try and get the US marines under other arrangements like the RP-US Extradition Treaty. But whether the US government will turn them over immediately to the Philippines is a big question.

Comparing this treaty – which by the way was not passed by the US Senate – with its counterpart VFA 2, it would seem that the terms are too one-sided. I’m sure the Philippine Embassy in Washington DC would not be able to take custody of Filipino soldiers, or any Filipino for that matter, accused of committing a crime. Federal or state courts could impose confinement of erring Filipinos in American jails. US police authorities simply have to inform the US government about any arrest or detention and it’s only then that Philippine authorities will be notified.

What Tito Guingona probably wanted to push from day one is that if there is going to be any VFA, the US troops would have to be confined to quarters. They’re not tourists in this country, they’re here to do a specific job. They’re supposed to train our soldiers during the exercises. Other than that, they must be confined to a specific area so that it will limit potential problems like what we have today. If this issue continues to become contentious, then perhaps the Senate is right in reviewing the terms of the VFA and renegotiating the treaty.

When all is said and done, Tito Guingona was right after all in being overly protective of Philippine sovereignty because as the 19th century British politician Lord Palmerston once said, "nations have no permanent friends or allies. They only have permanent interests."

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