RP Dilemma on the Visiting Forces Agreement

Following expiration of the Military Bases Agreement, the United States of America and the Republic of the Philippines entered into a Visiting Forces Agreement (VFA) to allow joint military exercises in the Philippines. Among others, the VFA governs the conduct of US troops when engaged in such exercises. VFA was later ratified by the Philippine Senate, notwithstanding opposition from some sectors, including the Catholic Bishops Conference of the Philippines. Lance Corporal Daniel Smith came to the Philippines four years ago as a member of a US military contingent to participate in the 2005 “Balikatan” military exercise. While off duty, he went out one night with other US troopers for a drink at the Subic Bay Freeport and met “Nicole”. He was accused of raping her that night and was convicted by a regional trial court in December 2006. His lawyers promptly filed an appeal at the Court of Appeals thereafter. Since then, decision on the case has been pending.

Upon conviction, he was incarcerated at the Makati City Jail. Later, the US Embassy took hold of Corporal Smith pursuant to the Executive Agreement signed by and between the Philippine Secretary of Foreign Affairs and the US Ambassador. Since then, he has been held at the premises of the US Embassy supposedly as a prisoner.

On 11 February 2009, the Philippine Supreme Court ruled that the VFA is constitutional. However, it also ruled that the separate executive agreement placing Smith under US custody pending decision of the Court of Appeals is not in accordance with the VFA provisions. It ruled further that Smith should be held in a facility within a Philippine territory, which the US Embassy is not. Pursuant to that ruling, penned by Justice Adolfo Azcuna on the eve of his retirement, the Supreme Court ordered the RP Government as a party to the Executive Agreement to renegotiate it with the other party.

It is the view of some analysts that the RP Government has not taken any initiative to implement the order. It seems as if it does not have the will or wherewithal to do so and appears to be awaiting Washington’s reaction to the court order. Groups that have been opposed to the VFA are of course most unhappy about the situation.

The principle of check and balance behind the establishment of the three branches of governance in RP is now being tested. The strongest reaction to the lack of compliance by the executive branch to an order from the judicial branch came from the legislative branch. In a radio interview, Senator Joker Arroyo, who is aligned with the current administration, characterized the responsible officials of the executive branch as having an “inferiority complex”. He, together with Senator Miriam Defensor Santiago who is similarly aligned, later made a call for the abrogation of the VFA to get the country out of the embarrassing situation.

One official of the Department of Foreign Affairs was quoted as saying “What can we do?” Apart from heeding the call to scrap the treaty, what RP can and must do, if not done yet, particularly the executive branch, and more particularly the Department of Foreign Affairs is to promptly send a Diplomatic Note to the US Government. The note should officially inform the US Ambassador about the court decision and order, and in compliance, graciously invite the US Government to a renegotiation of the VFA. It will then be up to Washington to officially respond to the proposal, accepting or declining the invitation. Informal consultations between the two parties can of course be held concurrently. In the absence of such official action, the characterization of the Executive Branch made by Senator Arroyo may indeed be justifiable.
There is nothing offensive about a diplomatic note from one sovereign country to another proposing to revisit and renegotiate an executive agreement, especially if it is an alternative to abrogation of a treaty. The latter alternative should be viewed as the least preferred option considering that it has implications, according to Executive Secretary Eduardo Ermita, on another and more important treaty – the Mutual Defense Pact.

An invitation to revisit an executive agreement should not jeopardize the good relations between the two countries considering the alternative. At worst, it could reinforce the decision to withhold huge amount of assistance potentially available to RP from the US Millennium Challenge Account for failing to pass certain criteria of eligibility.  Those criteria are about corruption.

[ROMEO A. REYES is a Former Senior Economist, United Nations Development Programme (UNDP), and former Assistant Director General, National Economic and Development Authority, Government of the Philippines.]