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PHILIPPINE FOREIGN POLICY AND THE NATIONAL INTEREST: CONTEXTUALIZING THE SUBIC RAPE CASE AND THE VISITING FORCES AGREEMENT (VFA) by Roland G. Simbulan Professor and Faculty Regent, U.P. System
(Address before the forum on “Nicole’s Case and the VFA” sponsored by the Task Force Subic Rape and the Justice for Nicole, Justice for Our Nation Campaign Network, Claro M. Recto Hall, Faculty Center, U.P. Diliman, January 15, 2006)
A Landmark for Philippine Sovereignty
Recently, what is perhaps the next most significant victory on behalf of Philippine sovereignty after the 1991 Philippine Senate decision to dismantle U.S. military bases from the Philippines, was achieved through the conviction of a U.S. military serviceman for rape by a Philippine court. This victory was achieved despite the special treatment accorded to the accused by the Philippine-U.S. Visiting Forces Agreement. Thanks to the victim Nicole and her family who refused to be bribed by the accused and their backer, the United States government, the mightiest superpower on earth today. Thanks to the brilliant legal acumen of Nicole’s private prosecutor, Atty. Evalyn Ursua, as well as the victim’s support groups, ranging from civic organizations to women’s organizations from the broad political spectrum. Atty. Ursua, made her alma mater, the U.P. College of Law and the U.P. Faculty proud, for this historic legal victory. It would also have made her fellow Companero very proud, the late nationalist Senator Claro M. Recto, in whose honor this hall was named. The Visiting Forces Agreement has un-intentionally placed the country’s national dignity and sovereignty on the line for which Nicole’s case now represents and has come to symbolize.
We should continue to give our wholehearted support for the quest for justice of Nicole who is but one of the unfortunate victims of the U.S. military’s heinous crimes that have committed against the Filipino people and national dignity and honor. We can only admire the steadfastness of Nicole and her family in standing up to the arrogant superpower of the world and standing up against the collaboration of the modern Makapilis in our government who have treacherously tried to sabotage Nicole’s
I commend the decision of Judge Benjamin Pozon of the Makati Regional Trial Court in upholding the rule of law and the majesty of the Philippine judicial system in giving justice to Nicole, the Subic rape victim. This is the assertion of Philippine national interest in our dealings with foreigners, in the true sense of the word. Likewise, Judge Pozon’s decision to assert the jurisdiction of the Philippines over the convicted U.S. soldier, Lance Corporal Daniel Smith, has put to shame the officials of the Philippine Department of Justice, the Department of Interior and Local Government, and Department of Foreign Affairs who are following the baton of Malacanang. These officials, have not only sided with the U.S. government’s position that the United States should have custody over the American soldier during the appeals process even after conviction by the trial court, thus shamelessly becoming spokespersons and lawyers for foreign interests. They have also connived to remove from Philippine jurisdiction and custody a convicted criminal who has been given sanctuary in U.S. territory, the U.S. Embassy. This cannot be the pursuit of the national interest in Philippine foreign policy. It is treason, at the least.
“Equal Protection before the Law”
Now, after conviction by the Philippine Court, the U.S. still wants to expand special treatment for U.S. Lance Corporal Smith who has been staying in luxurious accommodations with bodyguards – amenities given only to foreign diplomats - all throughout the trial.
Our officials have caved in to the U.S. threats to suspend the year-round Balikatan military exercises and the U.S. military assistance that ostensibly go with it. We should have let the American officials eat their words.
The best thing that could have happened to the Philippines right now is for the Balikatan war exercises to be scrapped permanently, for the Balikatan has only been used as a smokescreen for U.S. military intervention in the Philippines under the guise of “anti-terrorism training”. They expect the Philippine judicial system and our laws to cave in to this threat. We cannot bargain the wheels of Philippine justice for supposed “goodwill in RP-US relations”, US military intervention and a few crumbs of assistance from the U.S. global anti-terror campaign. This is a question of justice that cannot be compromised. Unfortunately, our executive officials have already caved in and are serving as the modern Makapilis to the foreign military power. And look at the quagmire in Afghanistan and Iraq where the United States has taken its global anti-terror campaign, for these countries are in today in chaos than ever before, hundreds of thousands of lives decimated by U.S. weapons of mass destruction, while the spiral of daily violence goes on.
Last January 12, 2006, as a member of the UP Board of Regents, I was invited the testimonial luncheon given by the University of the Philippines to its alumnus, the new Chief Justice of the Supreme Court, Reynato S. Puno, who is a member of Class 1962 of the U.P. College of Law. It was my first time to meet Justice Puno, but the first time I read anything by him was his outstanding dissenting opinion when the Visiting Forces Agreement was challenged for its unconstitutionality before the Supreme Court in year 2000, when he was still an associate justice of the Supreme Court. The Supreme Court then decided against the petitioners, Salonga, et al, but I was struck by the lucid dissenting view of Justice Puno who voted in favor of the petitioners.
Without intending to pre-empt or predict the Supreme Court’s future decision on the matter pertaining to the status of the Visiting Forces Agreement in relation to the specific Subic Rape Case , let me quote from some passages of Chief Justice Puno’s dissenting opinion:
“ No magic of semantics will blur the truth that the VFA could be in force indefinitely…The absence in the VFA of the slightest suggestion as to the duration of the visits of U.S. troops in Philippine territory, coupled with the lack of a limited term of effectivity of the VFA itself justify the interpretation that the VFA allows permanent, not merely temporary, presence of U.S. troops on Philippine soil.”
“ With the cloud of uncertainty still hanging on the exact legal force of sole executive agreements under U.S. Constitutional law, this Court must strike a blow for the sovereignty of our country by drawing a bright line between the dignity and status of a treaty in contrast with a sole executive agreement. However we may wish it, the VFA, as a sole executive agreement, cannot climb to the same lofty height that the dignity of a treaty can reach. Consequently, it falls short of the requirement set by Sec. 25, Art. XVIII of the 1987 Constitution that the agreement allowing the presence of foreign military troops on Philippine soil must be ‘recognized as a treaty by the other contracting state’. I vote to grant the petitions.”
Let us also therefore take a hard look at the Visiting Forces Agreement(VFA) and work towards its immediate abrogation. The VFA has only been used to give special treatment and extra-territorial rights to U.S. forces committing crimes on Philippine soil and violations of our laws, while engaged in so-called military exercises. This country and most especially its top officials should learn to obey its own Constitution which guarantees “equal protection before the law”. This is what Judge Pozon has taught all of us to assert in our own country.
The Subic rape case only underscores what is wryly wrong about the Philippine-U.S. Visiting Forces Agreement (VFA) and Philippine foreign policy. We do not need a VFA. Criminals- whether foreign or local – whether armed or unarmed, should all equally be put on trial by Philippine courts under Philippine laws and procedures. Why should visiting armed foreign troops be given special treatment or protection under the VFA. Our own citizens who are not even armed are not even afforded the same protection. We only need to implement our existing penal laws under which all Filipino citizens and other civilian foreigners visiting the country are tried and punished if they commit crimes or violate Philippine laws on Philippine territory.
From the very beginning, the Subic rape case trial was a disadvantage to the victim because of the provisions of the Visiting Forces Agreement which have given special treatment to the accused military respondents. The full weight and resources of the U.S. government were mobilized to hire expensive lawyers from the country’s top law firms to litigate the case in defense of the U.S. military respondents. But worse than this were our officials from the Dept. of Justice, Department of Foreign Affairs and the VFA Commission who in their public statements not only prejudged the case in favor of the accused, but even later took the side of the superpower on the issue of custody of the convicted soldier.
Philippine Officials Lack Sense of Country
This is why this country has difficulty in taking the road to progress, national self-determination and national development: its officials would rather protect the interests of powerful foreign interests, rather than the interests of their own people.
A few years ago, I guested in a panel discussion in a TV talk show with the former Philippine National Security Adviser, retired General Jose Almonte, where the good general practically bragged that our foreign affairs and defense officials base their “national security assessments on terrorism and security policies” on briefings given by top U.S. officials from the Pentagon and State Department. He was even so proud of this. I responded by saying that since when have our top officials based their policy assessments on briefings given by U.S. officials, or was the good general behaving like the colonial lackeys who sold out this country and its freedom fighters like Macario Sakay over a century ago, to the first American “visiting forces”? And I was so shocked when he even had the gall to state that, “inviting American troops on our soil is an exercise of sovereignty.” There you are.
In that program, I reminded Mr. Almonte that we are already - formally at least –long an independent country since 1946, with distinct national interests and security interests from that of the United States.
Filipino high officials should get together and learn to protect our national interest, instead of being running lapdogs to the defense of a foreign power and its already convicted accused. Instead of challenging the lawyers of the Filipina victim before the Supreme Court, our high public officials should get together and focus on promoting and advancing our own national interest.
But our own Filipino officials are often our own worst enemies.
Charles Bohlen, who served as U.S. Ambassador to the Philippines in the 1950s, once told a Filipino audience: “We in the U.S. Embassy are here to protect American interests. We expect your officials to protect your own interests.”
May we have more of the likes of Judge Benjamin Pozon in government, who as a Filipino, knew how to assert and uphold the dignity, national interests and sovereignty of this country.
May we also see the exercise of judicial independence of our courts in the coming days, despite the Visiting Forces Agreement.
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