VFA under review but no amendments

MANILA, Philippines - The Philippines and the United States are reviewing the Visiting Forces Agreement (VFA), focusing on certain provisions including custody of servicemen charged with crime, Foreign Affairs Secretary Albert del Rosario said yesterday.

Del Rosario stressed that the review, meant to “develop a shared understanding” of the agreement, began long before US Marine Private First Class Joseph Scott Pemberton was accused of killing Filipino transgender Jeffrey “Jennifer” Laude in Olongapo City on Oct. 11.

But both Del Rosario and Malacañang officials said the review would not lead to an amendment or a renegotiation of the VFA.

Del Rosario said renegotiation “is not plausible at this time, considering that both the Philippines and the US are fully committed to a successful implementation of the VFA that is in place.”

A joint congressional resolution was filed the other day seeking to abrogate the VFA, which was approved under the auspices of the Mutual Defense Treaty.

Del Rosario said that while his department “appreciates the views of the legislature on these matters,” only the president of the country can abrogate the VFA. President Aquino has said he is against the idea but supports a review.

There were previous efforts to review the VFA, but the review was interrupted by the drafting of the Enhanced Defense Cooperation Agreement covering increased rotational presence of US troops in the Philippines. The constitutionality of the EDCA is being challenged before the Supreme Court.

The VFA review resumed only about two months ago, Del Rosario told The STAR.

Apart from custody of erring servicemen, the Philippines wants to clarify the definition of “official duties.”

The VFA gives the US custody of its servicemen facing trial in the Philippines for offenses unrelated to the performance of their official duties, until the completion of “all judicial proceedings.” The VFA also stipulates that the proceedings should be completed within a year.

There are debates on whether “all judicial proceedings” include appeals all the way to the Supreme Court. Del Rosario told The STAR that the one-year period referred only to proceedings in the regional trial court.

In 2005, US Marine Lance Cpl. Daniel Smith was accused of raping a Filipina called Nicole also in Olongapo City. Smith was convicted by the Makati regional trial court within a year after the crime allegedly took place. But he appealed the conviction and the ruling was reversed by the Court of Appeals in 2009.

During the appeal, Smith remained in the custody of US authorities at the embassy in Manila. He was held in a refurbished shipping container similar to the one where Pemberton is currently detained inside the compound of the Joint US Military Assistance Group at Camp Aguinaldo, headquarters of the Armed Forces of the Philippines.

Del Rosario told The STAR yesterday that there is no provision in the VFA for its renegotiation.

But he said the review has been ongoing with the US “to arrive at a shared understanding of major provisions.” Through the review, the Philippines is also “strengthening its internal mechanisms” for better implementation of the VFA, he said.

Del Rosario said the US has been cooperating fully in the investigation and implementation of the VFA.

“It’s my job to make (the VFA) work,” he said. “Justice will be served.”

He emphasized that any renegotiation or amendment “is doable only with the consent of both parties.”

US Ambassador Philip Goldberg has said his government is open to discussing a review of the VFA.

Abrogation of the VFA will require a letter notifying the United States. The abrogation takes effect after 180 days.

The review is being undertaken by representatives of the Department of Foreign Affairs, Department of Justice and the Presidential Commission on the VFA.

“We are committed to demonstrate that the VFA works, that there is close cooperation between the Philippines and the US,” Del Rosario told The STAR.

At Malacañang, Presidential Communications Operations Office Secretary Herminio Coloma Jr. said the review being undertaken by the DOJ merely aimed to address “gaps in the agreement which lead to differing or varying interpretations.”

Coloma reiterated Aquino’s position “that the country needs the Mutual Defense Treaty, which governs the VFA, to address the challenges on… political tensions, potential military conflicts, issues about territories, but also even in terms of humanitarian assistance and the ability to be able to respond to changes being brought about by global climate change.”

Defense Secretary Voltaire Gazmin said abrogating the 15-year-old treaty could affect the Philippines’ efforts to achieve a credible defense posture.  – Delon Porcalla, Alexis Romero, Pia Lee-Brago