After infuriating President Rody Duterte as a result of the arbitrary ban on Philippine officials, the United States government may have to search elsewhere in the region to position its forces who have to leave the Philippines when the Visiting Forces Agreement (VFA) is terminated.
In September 1991, the Philippine Senate rejected the extension of the US Bases Agreement that made American forces pack up and leave, helped along by the sudden explosion of Mount Pinatubo.
In 1998, however, one of the senators who kicked out the Americans, Joseph Estrada, became president and signed the VFA that allowed the return of foreign military forces into the country on temporary visits.
The lopsided agreement had brought tears and misery to the nation whenever trouble arises from the horde of American soldiers roaming around.
In 2014, senators called for a review of the VFA, and the supplement Enhanced Defense Cooperation Agreement (EDCA) was signed under the term of pro-US President Noynoy Aquino. This was the source of collective slaps on the faces of Filipinos as the Americans flaunt the justice process.
The VFA has vague provisions that the Americans can interpret in their favor when the need arises.
The custody dispute that arose from the filing of murder charges against US Marine Private First Class Joseph Scott Pemberton for the death of transgender Jeffrey Laude in October 2014 came after another 2005 celebrated rape case involving several soldiers that included Daniel Smith.
The status of the accused soldiers is unknown due to the provisions in the pact.
Detained Sen. Leila de Lima, then Justice secretary, conceded to the US Embassy interpretation of the VFA provisions in retaining custody of Pemberton, yet it was obvious that it took a lot of stretching of the definition to accommodate a reversal of its true meaning.
Cited was Article V (6) of the VFA that “allows for the United States to request for custody over any US personnel over whom the Philippines is to exercise jurisdiction, the Philippines may opt not to refuse such a request.”
Then US Ambassador Philip Goldberg said the American government was exercising its option to reject the request of the Philippines to take custody of Pemberton.
The senators then sought a review of the vague provisions in both the VFA and EDCA in the wake of the custody issue, particularly on the conflict arising from jurisdiction over US soldiers suspected of committing a crime.
Since both the VFA and EDCA are considered by the US government as executive agreements, the senators said the legislature can’t act on the two pacts without the initiative of Malacañang.
It was the late Sen. Miriam Defensor Santiago, then chairman of the Senate Foreign Relations Committee and the Legislative Oversight Committee on the VFA, who raised the option of scrapping both pacts to end the arguments over interpreting their provisions.
Santiago said the VFA’s existence only caused the country “much grief.”
The Pemberton case, for instance, showed that the conflict over the interpretation of provisions under the VFA or EDCA would be repeated whenever a similar tragic incident involving American servicemen occurs.
Santiago asserted the Philippines’ primary jurisdiction over the American soldier “because the murder took place in Philippine territory, and constitutes a crime under the Philippine Penal Code.”
Jurisdiction is the government’s general power to exercise authority over all persons within its territory and custody is a component of jurisdiction, and means the care and control of a person involving his or her security, according to Santiago.
“If the Philippines has primary jurisdiction, then it follows that the Philippine should have custody. But this logic is spurned by the VFA. When the US requests custody, the Philippines is required to comply immediately. But when the Philippines considers it to be an extraordinary case and requests custody, the US is merely required to give full account. This gross inequity is the elephant in the room,” Santiago said.
The decision of Rody to adopt an independent foreign policy that does not kowtow to any foreign influence raises the necessity of ending the VFA.
The agreement is so similar to the onerous deals with private water concessionaires that contain too many provisions which violates the law of the land.