US open to talks on review of VFA

MANILA, Philippines - The United States is open to talks on reviewing the Visiting Forces Agreement (VFA), especially for the purpose of joint clarification and based on mutually agreed premises, Ambassador Philip Goldberg said yesterday.

But Goldberg emphasized the VFA review should not be linked to the custody issue involving US Marine Private First Class Joseph Scott Pemberton, who is being accused of killing transgender Jeffrey “Jennifer” Laude.

Goldberg said the Philippines is free to bring “additional things to the table,” apparently referring to Justice Secretary Leila de Lima’s pronouncement that executive officials are working on implementing rules for the VFA, including for the custody of US servicemen involved in infractions.

He said the US has been engaged in talks with the Department of Foreign Affairs (DFA) and Department of National Defense (DND) about clarifying provisions of the VFA to the “parties’ satisfaction.”

“While we are always open to talking to our friends and allies about these issues, they should not be done in the middle of something that we have to handle through the rule of law,” he said.

“This is what we can continue talking about but it’s not part of this process,” he added. “It’s part of a process between the countries to clarify what these things mean. And if the Philippines wants to bring additional things to the table as the secretary of justice suggested, that’s the Philippines’ right,” he said.

He said what should be done is to implement the VFA as it is.

Based on the VFA, Pemberton may remain at Camp Aguinaldo until the court decides on his detention. Since the murder case against him is still in the preliminary investigation stage, Philippine officials argue it is premature for them to insist on taking him under custody.

The murder of Laude has prompted renewed calls by various groups for the abrogation of the VFA.

Despite the furor over Laude’s death, the ambassador said abrogation of the VFA would be an overreaction.

“I can’t imagine abrogating the VFA. I took note that the President of the country said ‘no it shouldn’t be’ and we believe it shouldn’t. From our point of view it’s an agreement and it shouldn’t be abrogated,” Goldberg said.

He emphasized that the VFA allows the Philippines and the US to do something important for the two countries’ mutual security.

“We have to have a VFA to be able to do things but we understand concerns here and we have talks ongoing to clarify various matters,” he said.

No amendment

De Lima, meanwhile, clarified that amending the VFA was not being considered in the ongoing discussions on the crafting of implementing guidelines for “contentious issues” and “not so clear provisions.” 

De Lima pointed out that the guidelines being prepared by both sides should be consistent with all provisions of the agreement.

“The implementing guidelines should be under the parameters of the VFA. They cannot change or amend the basic agreement,” she explained.

De Lima said the guidelines would just “correct deficiencies, gaps or loopholes in the agreement which lead to the differing or varying interpretations.”

She also stressed that the Enhanced Defense Cooperation Agreement (EDCA) was not an implementing guideline for the VFA.

She declined to comment on calls for the abrogation of the VFA. “That kind of decision should be addressed at the highest level,” she said.

Among the contentious issues cited by the justice chief were provisions on “custody, jurisdiction and official duty.”  

Foreign Affairs Secretary Albert del Rosario, for his part, said the Philippines would not move for a renegotiation of the VFA despite new concerns raised over provisions on custody.

Del Rosario said there is a mechanism under the VFA designed to address questions on legal custody of US personnel accused of crimes in the Philippines.

“We are looking at the smooth implementation of the mechanism, I think this time, we are not for a renegotiation, because if there is a material change then we have to resubmit the whole thing back to the Senate,” Del Rosario said in an interview.

He said the US is also unlikely to allow a renegotiation of VFA. “I think in essence, I am not sure the US would agree,” he told Senate finance subcommittee chairperson Sen. Loren Legarda during a hearing on the DFA budget.

“Well, the sticky points are: jurisdiction, the custody and official duty. We are looking at all of those,” he added.

“The VFA is being reviewed at this point in time. We are in discussion with US officials. I think there is great interest in the VFA because of the attention it attracts from the case of Jennifer,” he said.

Del Rosario explained that the Philippines has jurisdiction over Pemberton but that the US has legal custody over the Marine.

“The jurisdiction, without question, lies with the Philippines and everywhere you go, there is difference in terms of how men in uniform are treated worldwide,” he said.

“And so, custody is in accordance with the DFA, legal custody remains with the US although in the case of Pemberton, we have requested for custody, in terms of the extraordinary situation,” Del Rosario explained.

He also clarified the ongoing review began before the Laude killing.

“We are reviewing the VFA in its entirety, to see how we can fine-tune it,” Del Rosario added.

Review only

Jesus Is Lord founder Bro. Eddie Villanueva also said the VFA should only be reviewed and not trashed.

Villanueva issued the pronouncement during yesterday’s celebration of his group’s 36th anniversary celebration at the Rizal Park.

“I think it should only be reviewed and not necessarily scrapped outright. There is a saying that no man is an island but with the global condition of all countries, world cooperation is necessary. Synergy is a must,” he said.

“If we could have diplomatic tactfulness in establishing friendly relationships with all countries based on mutual benefits and mutual respect without sacrificing the sovereignty and integrity of our country,” he added.

The JIL leader believed that one of the VFA provisions that should be reviewed is the one on custody of suspect. “The suspect should be surrendered immediately. They should respect the sovereignty of our country. There is always room for improvement,” he said.

“The VFA, I believe, especially with what China is doing at the Spratly Islands, it is necessary and that we should be mature enough. I think we should not be ultra extremist in diplomatic relationship,” he pointed out.

“Before, the only thing right was to be an anti-American, I was among those who led rallies… But now, I have seen that we should be sober, for our leaders to study and prioritize what is the greatest interest and for the welfare of the Filipino people,” he said.

He added that the leaders in government should consider what is best for the majority of the people and not only for the interest of one person.

Abrogate

Valenzuela Rep. Sherwin Gatchalian, meanwhile, voiced support for calls for the termination of the VFA.

He said the killing of Laude allegedly by Pemberton should prompt the country to abrogate the VFA.

“This is an opportunity for the government to prove its loyalty to the Filipino people by abolishing the VFA and by making sure that the accused will be placed under jurisdiction of Philippine laws,” he said.

He said the VFA “is a one-sided affair since it was only the Philippines that ratified it, and the US, while doing nothing, stands to gain the most out of it.”      

“It’s like an American national promising to marry his Filipina girlfriend on condition that the Filipina help him pay his debt in the US. And after everything has been settled, the American will tell his Filipina friend to forget about the wedding and they just live as common-law spouses,” he added.

Gatchalian recalled that nine years ago, Lance Cpl. Daniel Smith was convicted of rape by a Makati court and was briefly detained at the Makati jail but was subsequently transferred to the US embassy in Manila.

The Court of Appeals later reversed Smith’s conviction after the victim recanted her story. Smith then immediately left the country.

“The people cried for justice when our leaders allowed the US to violate VFA provisions to serve their own interests. This time, the government must serve the interests of the people by abrogating the lopsided VFA,” Gatchalian said.

For his part, Rep. Terry Ridon of party-list group Kabataan urged the Department of Justice (DOJ) to recommend the termination of the VFA, instead of proposing new implementing rules and regulations for the agreement.

“The problem with drafting new implementing guidelines is that it gives Washington the opportunity to sneak in new provisions and interpretations that are favorable for them. We need to emphasize the fact that any changes in the VFA need to be approved by both parties,” he said.

He said the issuance of new guidelines on the custody of US military servicemen involved in criminal offenses “will not solve the manifold faults of the VFA.”

“Concocting new implementing rules will not suffice to address fundamental flaws in the text of the agreement itself. It’s like saying that we can fix a flawed law by revising its IRR (implementing rules and regulations). No, it doesn’t work that way,” he said. – With Edu Punay, Jess Diaz, Christina Mendez, Evelyn Macairan