For some time now, the Subic rape case controversy has merited much discussion and debate in national media. The "midnight" transfer of Lance Corporal Daniel Smith from the Makati City Jail back to the US Embassy has become THE issue of the day. Now, media reportage is delving into the legal interpretation of the VFA i.e. who really should have custody of Lance Corporal Smith, with some quarters calling for the disbarment of several Cabinet secretaries and even some lawyers' group suggesting that the case may spark a constitutional crisis in the country.
Back in 1999 when the Philippine Senate was deliberating the VFA, I was then working as a legislative aide for Senator Roco. I was fortunate enough not only to hear the plenary debates but actually study the VFA and help Roco come up with a stand on the VFA. I still remember it clearly for three reasons: one, because it was one of the few occasions where he was openly impressed with my work; two, it was one of the few occasions wherein I disagreed with his position; and three, it was the first time I heard the word "
interoperability."
Back then, the internet was still a novelty and our office had just had an internet connection. Thru the web, I was able to source all the other VFAs and SOFAs (Status of Forces Agreements) entered into by the US with other countries. I even compiled them into matrix form complete with my annotations. After reading my "comprehensive" and "well-researched" work, I remember that Roco was suitably impressed enough to say it out loud (one of the few times he did so).
In the course of my "internet-based" research (my very first), I learned that the main goal of joint US-RP military exercises is to achieve "interoperability" - meaning that the two armed forces must be able to operate as one army during times of conflict or war. After all, that is what allies do: fight against a common enemy. And allies must be able practice in order to operate together seamlessly (i.e. use each other's equipment) and also to prevent accidents (i.e. "friendly-fire") in wartime. Well and good. But previous incidents involving American servicemen and "natives" neccessitate that some form of agreement, a "visiting forces agreement," must be in place to govern the conduct of American servicemen in the Philippines. In other words, before they send out their troops to the Philippines, the Americans wanted some clear-cut commitment and rules on how their troops will be treated in case of "accidents" and incidents like the one involving Smith today.
I ended my report by recommending to Roco that he ratify the VFA. I argued that with our limited DND budget, the only opportunity our troops will have to target practice and hone their military manuevering skills is during the periodic RP-US "wargames" which the Americans will be funding for the most part. Besides, Filipinos at that time wanted the VFA - no less than 55% of the population according to SWS wanted the Senate to ratify the VFA. I thought that since Roco said he was happy with my work, he would heed my recommendation. I was wrong.
Watching the plenary debates in the Senate, I was torn between doing my job of providing my boss with data to support his position and intellectually agreeing with the other side. As a professional, I performed my job and never told anyone outside our office of my views. In the Senate floor, I remember that it was Senator Blas Ople (then Chair of the Senate Foreign Affairs Committee) who was the staunchest and I may say ablest defender of the VFA. He most eloquently argued for the VFA, first be laying down the context: visiting US soldiers in the Philippines are not tourists. They are in the Philippines not of their own accord but upon orders of their government. And since visiting US soldiers would not have found themselves in the Philippines if not for their government, American officials justifiably feel that they have some responsibility and obligation to protect their soldiers from unjust charges. Thus, the need for the VFA.
But Senator Roco objected to the VFA's provisions on the criminal jurisdiction of American troops, particularly Article V section 3 (d) which states:
"Recognizing the responsibility of the United States military authorities to maintain discipline and good order 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."Roco claimed that this provision is a
"red herring" (another new expression for me then) designed to confuse our people into thinking that we have the option to keep the offending American.
He argued that in reality, the above provision has absolutely no chance of being implemented for no Philippine President can and will say no to the Americans. More than 8 years before the Smith case, Roco saw what will happen.
How I wish I could go over the old Senate transcripts now. If someone (a reporter perhaps) could just read the transcripts, he/she would find that the Smith rape scenario has been foreseen and debated upon by our senators some 8 years ago. At one point, frustrated that the debate on the VFA seemed to focus only on the rape scenario, Roco quipped to me (in private, of course) that perhaps the reason why Filipinos are so obsessed with rape and are too afraid of foreigners raping our women is because we do it to our women, what with gruesome rapes being reported in the tabloids everyday.
In the end, Roco lost together with four (4) other anti-VFA senators namely Pimentel, Guingona, Sergio Osmeña and Loren Legarda. The senators who voted for the VFA are the following:
1. Rodolfo Biazon
2. Blas Ople
3. Franklin Drilon
4. Marcelo Fernan
5. Francisco Tatad
6. Rene Cayetano
7. Tessie Aquino-Oreta
8. Robert Barbers
9. Robert Jaworski
10. Ramon Magsaysay, Jr.
11. John Osmeña
12. Juan Flavier
13. Miriam Santiago
14. Juan Ponce Enrile
15. Tito Sotto
16. Ramon Revilla, Sr.
17. Nikki Coseteng
18. Gringo Honasan
Senators Ople, Fernan, Cayetano, and Barbers have long since passed on but the rest of the senators who voted for the VFA are still with us. With the possible exception of Senator Enrile, all pro-VFA senators are conspicously silent on the issue. I am most particularly interested to hear the opinion of Senators Biazon, Miriam Santiago and Drilon (who are usually outspoken) on the legality of Malacañang's move to transfer back Smith to the US Embassy. In my mind, it is clear that the American request was justified under the VFA because Malacañang do not consider the Subic rape case "of particular importance" to the Philippines. Of course, no Malacañang official will be so brazen as to say it out loud. But the Subic rape case, while sensational, is not big enough for Malacanang to sever its ties with the Americans. GMA is not about to displease Dubya again (remember OFW truck driver Angelo dela Cruz and the Filipino troop withdrawal from the Coalition of the Willing?) over some girl named Nicole, especially when public sympathy is mixed between her and Smith.
The question then is: what would make a case of "particular importance" to Malacañang? That was the question Roco asked in the Senate floor some eight years ago. My answer to that is: if the case is big enough to threaten or bring about the ouster of the occupant in the Palace, then the case would become "of particular importance" to the Philippines.
P.S.
In case you are interested to read more about the VFA, here are some recommended readings.
1. SWS survey
(here)2. The Visiting Forces Agreement
(here) (courtesy of Chan Robles)
3. Wikipedia has a concise backgrounder on the VFA
(here)4. But if you want a more detailed version, I suggest you read the Supreme Court case file
(here)
