Wake Up, Philippines!

Win for veterans; remedies for VFA

Posted in Congress, Foreign Affairs, international relations, Legislation, Treaties, Veterans Affairs, VFA by Erineus on February 22, 2009

LAST February 9, the day after his arrival from Washington, D.C., Foreign Secretary Alberto G. Romulo visited me. He lamented that media had ignored the real purpose of President Macapagal-Arroyo’s recent side trip to the United States. Recall that from the Davos World Forum in Switzerland (and a few other cities), GMA flew to America, instead of returning home as originally planned. He rued that media unfairly pilloried GMA’s alleged “shameless stalking” of US President Barack Obama.

Main purpose of US trip. Romulo explained that, at the recommendation of our Ambassador to the United States, Willy C. Gaa, he prodded GMA to go to Washington because the US Congress was then hurriedly debating the gargantuan economic stimulus package proposed by President Obama. He advised her to meet with US congressional leaders to make sure that the long-delayed compensation for the Filipino veterans of World War II is included in the stimulus bill.

Thus, according to the genteel foreign secretary, GMA met with Senators Daniel Inouye, chair of the Senate Appropriations Committee; Daniel Akaka, chair of the Veterans Affairs Committee; John Kerry, chair of the Foreign Relations Committee; and Jim Webb, chair of the Sub-Committee on East Asia and Pacific Affairs, who all “promised to help her fulfill her mission.”

In the US House of Representatives, she spoke with Speaker Nancy Pelosi and Congressman Steve Austria (the first first-generation Filipino-American member of the US lower house) who both “assured her of their full support.”

She also conferred with Secretary of State Hillary Clinton, whose photo-op with her was carried extensively in TV and newspaper reports. The attendance of GMA at the National Prayer Breakfast—though given much publicity—was only an incident, not the main agenda, of her US trip, so Secretary Romulo said.

Congratulations but more work needed. I must admit that, given the wide publicity of her alleged dogging of Obama, I was not too persuaded—at that time—that the veterans’ cause propelled GMA’s recent visit to America. But this week’s headline stories announcing the allotment of $198 million (out of the $787-billion stimulus package) to compensate some 18,000 Filipino World War II veterans, convinced me that GMA’s US trip was well-worth the effort.

Perhaps, the residual public distrust of GMA’s administration as shown by repeated poll surveys and the inadequate reporting of her US visit contributed to the skepticism of her US agenda. But the proof of the pudding is in the eating. Her mission was accomplished. The six decades of effort to correct an injustice to our war heroes finally succeeded.

To quote Sen. Joker Arroyo, the amounts awarded are “too little and too late.” But I think they are still welcome. I just hope that, as urged by the Inquirer’s editorial last Tuesday, GMA will continue to lobby for a much bigger award. In the meantime, let me give credit to whom credit is due: Well-done, Madam President! Congratulations, Secretary Romulo and Ambassador Gaa!

I also join the Inquirer editorial the other day saluting US Senator Inouye for his steadfast support.

* * *

Legal and diplomatic solutions to VFA. On May 17, 2006, during my term as chief justice, I visited—accompanied by our then Ambassador to the US Albert del Rosario—some US Supreme Court justices in Washington, D.C. to invite them to participate in the Global Forum on Liberty and Prosperity that our high court was sponsoring later that year.

Declining my invitation, US Justice Antonin Scalia—the leader of the conservatives who often dominate the US Supreme Court—explained,

“… I am useless in international meetings because I believe that our Supreme Court is tasked to enforce only the US Constitution and US laws, not cross-border concepts that do not find implementing US statutes.”

This is why I was not surprised by the US Court’s ruling in Medellin vs Texas (Mar. 25, 2008) that a treaty—even if ratified by the US Senate—will not be enforced in the United States, unless (1) “by its terms,” it is self-executory, or (2) it is implemented by an act of the US Congress.

In a commentary published in the Inquirer’s front page last Feb. 14, I opined that, based on this ruling, the Visiting Forces Agreement (VFA) is not enforceable in the United States because (1) the US Senate had not ratified it; (2) nothing in the VFA says it is “self-executory,” and (3) no US law implements it.

Per Ambassador Kristie Kenney, the VFA has “the force of a treaty,” but sadly, per the US Supreme Court, the treaty does not have the force of a US domestic law. For this and the other reasons detailed in that commentary, the VFA violates our Constitution and is also unenforceable here. Hence, our government should initiate moves to abrogate it, or at the very least to renegotiate its objectionable features, as urged by many senators.

But to solve the diplomatic standoff now plaguing Lance Cpl. Daniel Smith’s custody, our courts should decide the appeal of his conviction as soon as possible. In this manner, Smith would either be unquestionably jailed in the Philippines if convicted, or freed if acquitted. This is a diplomatic solution without loss of face for the both the Philippine and US governments.

A diplomatic remedy suggested by the US Supreme Court itself is for the US Congress to pass an omnibus law implementing treaties entered into by the United States, including—if I may humbly suggest—the RP-US Mutual Defense Treaty and the revised VFA.

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Comments are welcome at chiefjusticepanganiban@hotmail.com


Secret VFA paper bared

Posted in Foreign Affairs, international relations, Treaties, VFA by Erineus on February 20, 2009

Joker says pact favors erring US soldier

MANILA, Philippines—Sen. Joker Arroyo has produced a secret document that proves the one-sided nature of the Visiting Forces Agreement (VFA) between the Philippines and the United States in the treatment of erring personnel.

“This is a well-kept secret,” Arroyo yesterday said of the “complemental agreement” that he described as “part and parcel of the VFA” and constituted its implementing rules and regulations.

The 14-page document was signed by then US Ambassador to the Philippines Thomas C. Hubbard and then Foreign Secretary Domingo Siazon Jr. on Oct. 9, 1998.

According to Arroyo, the VFA mandates that an American soldier who commits a crime in the Philippines will be detained at any US embassy or penal facility. But under the secret agreement, a Filipino soldier who commits a crime in the United States cannot be housed in a Philippine embassy or consulate but “shall be served in penal institutions in the United States suitable for the custody level of the prisoner.”

“In short, confinement shall always be in a US penal institution. The only consuelo de bobo (consolation) is that we may ask which prison [the Filipino soldier] may be confined,” Arroyo told reporters in a phone-patch interview.

Ratified by the Philippine Senate in 1999, the VFA governs the conduct of US troops engaged in military exercises in the country.

Calls for its review and outright scrapping have lately been aired, triggered by the continued detention at the US Embassy of Lance Cpl. Daniel Smith, who was convicted in 2006 of raping Filipino woman “Nicole.”

Solid argument

Arroyo provided Senate reporters copies of the accord titled “Agreement between the Government of the United States of America and Government of the Republic of the Philippines regarding the Treatment of Republic of the Philippines Personnel Visiting the United States of America.”

“We never had a solid argument why the VFA is unequal, with no reciprocity and no mutuality, until now,” Arroyo said, adding that the document was provided by “a learned jurist.”

Its preamble states that the two governments agreed to the accord “for the purpose of complementing the Agreement between the United States of America and the Republic of the Philippines regarding the treatment of United States Armed Forces visiting the Philippines.”

Arroyo said the matter should not be elevated to the Supreme Court but should be resolved within the Philippine government’s political department because the foreign secretary “speaks for the President.”

Siazon is now the Philippine ambassador to Japan.

Asked to comment, Bayani Mangibin, spokesperson of the Department of Foreign Affairs, said he would look into the agreement, if indeed there was one, and seek a clarification from Siazon.

Colonial mentality

“The terms on confinement are so glaringly iniquitous, and that Philippine authorities ever agreed to this reflects our residual colonial mentality,” Arroyo said.

He said that with Manila’s consent, erring Filipino troops could even be held at Guantanamo Bay in Cuba, which is operated by the US government as a detention camp for terrorists.

Arroyo said this anomaly in RP-US relations should be resolved in favor of Filipinos.

“It is time President Arroyo and the legislature joined hands in a nonpartisan manner to eliminate this iniquitous and one-sided arrangement, which has bedeviled us for the past 63 years, from 1946 to 2009,” the senator said.

“After all, it was neither President Arroyo nor the present Senate that entered into the VFA in 1999,” he said.

Arroyo observed that certain parties had warned against “rocking the boat.”

He lamented: “We need the US, they say. The pity of it all is that because of the century of dependence on the United States, we have not learned how to walk. It’s time we got up unaided. And if we fall, as we start to walk, then we stand up on our own as healthy babies do.”

Not just making noise

Arroyo said that in seeking the scrapping of the VFA, the focus should be on “confinement and jurisdiction.”

To the reminder that the Philippine Senate had ratified the agreement, he said: “Of course, past is past. But what is the alternative? Let’s just allow this to go on, forget this?

“We’re being beaten black and blue, and yet we’re still smiling.”

Arroyo said working for the scrapping of the VFA was not merely a matter of “making noise” but a matter of “justice and official responsibility.”

Opinion/Letters to the Editor
By Michael Lim Ubac
Philippine Daily Inquirer
First Posted 01:34:00 02/20/2009


Posted in DFA, Foreign Affairs, VFA by Erineus on February 18, 2009

This is what Paragraph 6, Article 5 (on criminal jurisdiction) of the Visiting Forces Agreement (VFA) says:

“The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with the United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.”

Paragraph 3(d) of the same article also states:

“Recognizing the responsibility of the United States military authorities to maintain good order and discipline among their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular importance, it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities receive the United States request.”

I guess the Philippine government did not consider the case of US Marine Lance Corporal Daniel Smith of “particular importance.” And even if Manila did, and had notified the US, lawyers can split hairs and argue that the VFA does not specifically require the US to give up jurisdiction over its military personnel.

Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney agreed that Smith, following his conviction for raping the Filipina woman known as Nicole, must be turned over to US custody and detained at the US embassy compound. Smith, escorted by Philippine cops, was spirited out of the Makati City Jail in the dead of night.

Why were those provisions in the VFA approved? We should ask the diplomats who negotiated the agreement during the presidency of Joseph Estrada.

The VFA is patterned after similar agreements the Americans have with several other countries. Washington considers these mere executive agreements that need no ratification by their Senate. But we insisted on ratifying it. Why did our Senate, again during Erap’s time, ratify the VFA with those provisions?

The Supreme Court, acting on petitions filed by Nicole, Bayan and a group led by former Senate president Jovito Salonga, upheld the VFA but ordered Smith’s transfer to a Philippine prison.

Perhaps the SC considered Smith’s conviction by the Makati Regional Trial Court the completion of all judicial proceedings. The conviction was handed down within a year after the crime, again in compliance with a VFA provision stating, “In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph” – including making Smith available for further investigation or judicial proceedings. “The one year period will not include the time necessary to appeal.”

Smith is appealing his case. But if the period for completion is one year, excluding the appeal, are judicial proceedings completed in his case? Then he can be turned over to Philippine custody.

Malacañang obviously is not about to insist on this, especially not with the US Congress just recently approving compensation for the remaining Filipino veterans of World War II as part of US President Barack Obama’s $787-billion economic stimulus package.

Such is the state of the nation. We cannot assert sovereignty because we remain dependent on Uncle Sam and many other countries. We are even starting to develop dependence on China.

We congratulate the veterans, of whom only about 18,000 are left in the Philippines and the US. But it would have been better if they had received that kind of compensation from their own government. After all, they were defending their own country, not the US.

How much is that lump sum of $9,000? Less than P500,000. That’s a total of less than P6 billion for the 12,000 surviving veterans in the Philippines. Our leaders can spend P123 million for overseas junkets, but prefer to rely on Uncle Sam to take care of our own war veterans.

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And we rely on Uncle Sam for many other things. Which is probably why the original decision on Smith’s case was half-baked and confusing.

Even if Nicole had flirted with Smith, sex with a drunken woman was Smith’s undoing. How drunk was Nicole? She could remember how many and what types of drinks she had, but the judge decided she was drunk enough.

The sex occurred in a van driven by a Filipino, with Smith’s fellow soldiers in it, all rushing to return to their ship. Whether or not they cheered Smith on, their failure to stop a rape made them accessories – including the driver, who insisted he did not think Nicole was raped. So why were the other soldiers cleared?

Either they should have all been convicted, with varying degrees of punishment, or else they should have all been cleared together with Smith. Either there was rape, witnessed by several men in a closed van, or else there was none.

The decision merits a closer review. But after the Makati court managed to comply with that one-year deadline, the case is now bogged down in the usual mire of the Philippine justice system. The Supreme Court ruling covers only custody; Smith’s appeal of his conviction is still with the Court of Appeals. How long will that case gather cobwebs before it reaches the SC?

Until that final SC ruling, it looks like the Americans intend to hold on to their Marine. And it looks like Malacañang does not intend to challenge it, regardless of the SC order on custody.

Can a Supreme Court order trump an executive agreement with a foreign government? It makes for disastrous diplomacy when international commitments made by our government is worth less than toilet paper.

We can scrap, amend or renegotiate the VFA. If it is scrapped, we also throw out all the US troops here. Washington isn’t sending its soldiers to non-war zones where there are no rules governing its troops.

If we renegotiate, we cannot change the rules in the middle of the game. The result of any renegotiation cannot be applied retroactively to Smith’s case.

In the meantime, because the venue of his detention was agreed upon by Romulo and Kenney, perhaps the two can meet again to amend their agreement. Diplomacy could offer a way out of this mess.

View previous articles of this column.

By Ana Marie Pamintuan

Updated February 18, 2009 12:00 AM

Lawmaker says: Suspend VFA if US won’t hand over Smith

Posted in DOFA, Foreign Affairs, Treaties, VFA by Erineus on February 11, 2009

MANILA, Philippines — The country can revoke the Visiting Forces Agreement (VFA) should the United States refuse to comply with the Supreme Court ruling to place convicted rapist Daniel Smith under Philippine custody, a lawmaker said on Wednesday.

“Now the Americans will be tested, whether they respect the primacy of the Supreme Court and agree to place Smith under Philippine custody. Their failure to do so would be a reason for the Philippines to suspend or even terminate the VFA,” Muntinlupa Rep. Rozzano Rufino Biazon said.

But militant lawmakers have a different take on the ruling, which also upheld the constitutionality of the VFA.

Bayan Muna (People First) Representative Teodoro Casiño said a bigger issue than Smith’s custody is the Balikatan (shoulder-to-shoulder) joint military exercises being conducted under the VFA.

Casiño said Bayan Muna is considering filing another Supreme Court case to question the supposedly permanent presence of US troops in the country.

Gabriela Rep. Liza Maza called the VFA an “affront to the country’s sovereignty.”

“With this decision, the courts have virtually given the United States a free hand in dealing with criminal offenders from the US military and dims the hopes of attaining justice for women and children victims of abuse and violence,” Maza said in a statement.

“We can expect more impunity now that the Supreme Court has rendered our courts limp and toothless in the face of US criminal violations,” she said.

By Leila Salaverria
Philippine Daily Inquirer
First Posted 22:08:00 02/11/2009

Supreme Court orders US Marine into local custody

Posted in Supreme Court Decisions, VFA by Erineus on February 11, 2009

MANILA, Philippines (AP) – The Supreme Court today ordered a US Marine convicted of rape to be moved from the American Embassy into Philippine custody, reopening an emotional case that has become a rallying point for anti-American protests.

The court ruled that a deal allowing Lance Cpl. Daniel Smith to stay at the embassy while appealing his 40-year jail term was contrary to the Visiting Forces Agreement, which governs the conduct of US forces in the country.

The justices instructed Foreign Secretary Alberto Romulo to negotiate Smith’s transfer to an appropriate detention facility. Pending such an agreement, Smith can remain at the embassy, the court said.

It also directed the Court of Appeals to quickly resolve Smith’s appeal.

The US Embassy issued a statement saying it would consult with legal experts in Washington.

The rape case has stirred emotions in the former US colony and became a rallying point for activists demanding an end to US military counterterrorism exercises.

Smith, 23, from St. Louis, Missouri, was detained and put on trial in 2006 after a woman accused him of rape. After sentencing, he was transferred from a local jail to US custody while his case was on appeal.

When a Filipino judge initially ordered Smith be detained in a suburban Manila jail, the US government temporarily suspended joint, large-scale military exercises in protest. Washingon agreed to proceed with the annual Balikatan war exercises with the Philippines only after Smith had been transferred to the embassy.

President Gloria Macapagal Arroyo backed the US position and said Smith’s embassy detention was necessary to avoid complications in relations with its key ally.

A provision in the 1998 Visiting Forces Agreement states that any accused US service member shall remain in American custody until all judicial proceedings are exhausted.

But there are differing interpretations of when that is. The Filipino woman’s lawyer, Evalyn Ursua, and the left-wing alliance Bayan claim Smith should be serving his sentence in a Philippine jail, regardless of his appeal.

Smith’s lawyer, Jose Justiniano, said he explained the implications of the decision to his client. He said Smith has no choice but to comply.