POSTSCRIPT / March 21, 2006 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Justice secretary ready to lose Subic rape case?

VFA COVER: If the Philippines did not sign the Visiting Forces Agreement with the United States, we would not be in this embarrassing situation of being denied custody of four American servicemen accused of raping a Filipina in Subic last November.

Without the VFA, the accused GIs would now be, or should be, in the physical custody of local authorities because they were off duty and on Philippine soil at the time they allegedly committed the heinous crime of rape in violation of a Philippines law and of the rights and dignity of a Philippine citizen.

With those preponderant circumstances, had there been no VFA, the GIs would have gone straight to a local detention cell while the case is being processed. They would not have gained a haven in the US embassy, which is technically US territory.

As a local expression goes, when we signed the VFA, we picked up a rock and hit ourselves in the head with it.

* * *

TELEGRAPHED MOVE: The case is again on the front burner because Justice Secretary Raul Gonzalez hinted over the weekend that charges may be dropped against some of the four GIs before their arraignment scheduled March 24 in Olongapo City.

“I think not all of them should be charged, but Smith should be charged,” Gonzalez said, referring to Cpl. Daniel Smith, one of the principal accused. The GIs have insisted that only one of them had sex with the woman and that the act was consensual.

But why is Gonzalez telegraphing the move of the government on Smith’s plea for the rape charge to be dropped? He virtually announced that Smith will stay as charged while his companions will be off the hook.

Assuming this is the game plan, why should the US-friendly secretary announce it prematurely? What does he gain from doing so?

(The secretary also has this habit of commenting on the merits of cases whose disposition by state prosecutors under him may just be elevated to him on appeal.)

* * *

DRIVER SET FREE: The Filipino driver of the van where the 22-year-old woman was allegedly raped was originally a co-accused, but he was dropped after it was noticed that holding him would highlight the double standards being applied.

Imagine what would happen if the Filipino driver, as accessory, were locked up in an Olongapo jail while his American principal co-accused were lolling at the US embassy premises.

The solution to this explosive public relations problem was to remove the Filipino driver from the charge sheet so there would be no need to detain him apart from the Americans.

I wonder, though, if the driver is aware that he may still be indicted later if he refuses to cooperate with the prosecution? (Assuming, of course, that Gonzalez and the government want to win the case and lose American points.)

* * *

U.S. AID CUTS: Talking of losing US points, read this report of Eric Lachica emailing from Washington, DC, on President George W. Bush’s slashing US aid to the Philippines:

“President George W. Bush has slashed American economic and military assistance to the Philippines from $87.8 million in 2006 to $83 million in fiscal year 2007, or a reduction of $6 million.

“In his budget proposal submitted to Congress last month, the US President reduced funding for the various assistance programs to the Arroyo government by six percent.

“The bulk of the cut will be made on the Foreign Military Financing (FMF) from $20 million this year to $17.6 million next year, or a reduction of more than $2 million.

“In contrast, military and economic aid to Indonesia and other Asian countries has been increased.

“Another big slice was made on Development Assistance, from $21.5 million this year to $19.6 million next year, or a reduction of nearly $2 million.

* * *

MORE CUTS: “In 2005, a year after the withdrawal of the small Philippine contingent from Iraq by President Gloria Arroyo, US aid to the Philippines was reduced by 30 percent, from $125.6 million to $87.6 million, or a reduction of $37.8 million.

“In the current budget of Mr. Bush, the Economic Support Funds (ESF) and International Military Education and Training (IMET) remained the same as that of last year of $20 million and $2.9 million, respectively.

“Slight reductions were made in the Child Survival and Health Funds, from $21.4 million to $21 million.”

(Several reasons were advanced in the report for the aid reduction, but we leave that to your imagination. Or we can wait for the newly arrived US Ambassador Kristie Anne Kenney to offer some reasons for this. — fdp)

“During the confirmation hearing of Ambassador Kristie Anne Kenney in the Senate, the name of President Arroyo was never mentioned by her or the senators who grilled her.

“The ambassador pledged to strengthen democracy when a senator asked her about the political crisis in the Philippines.”

* * *

NOT A TREATY: The incoming US ambassador may also want to explain later why the VFA, which is roiling RP-US relations, was never submitted by the White House to the Senate for advice and consent or the equivalent of ratification.

As said in an earlier Postscript, the fact that the US Senate did not ratify the VFA — in contrast to its having been concurred in by the Philippines ‘ treaty-ratifying Senate — is not a minor detail.

This failure of the US Senate to consent to it tells us how the US government regards the VFA. It probably tells us also how we should regard it in return, in the spirit of justice and reciprocity.

That the US regards the VFA as only an executive agreement, or a notch lower than a treaty, could pose a problem on this side of the Pacific if the usual nitpickers and anti-American elements pick up the issue.

Section 25 of Article XVIII (Transitory Provisions) of the Constitution says that foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State.”

Since the VFA is not recognized as a treaty by the US — “the other contracting State” — its serving as basis for the continued stay of foreign (American) forces in the country is questionable.

* * *

ADVANCE SURRENDER: While everybody is doing some explaining, Secretary Gonzalez may want to continue talking and help explain a few more points in the government’s handling of the Subic rape case.

The problem seems to have arisen basically from the Philippine government’s (1) advance surrender of primary jurisdiction over criminal cases still to be committed, and (2) failure to assert on time its primary jurisdiction over the Subic case.

With all the attendant circumstances as pointed out earlier, the case actually falls under the primary jurisdiction of Philippine authorities. But there is Article V (on Criminal Jurisdiction), Paragraph 2(d) of the VFA which says:

“Recognizing the responsibility of the United States military authorities to maintain good order and discipline 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.”

* * *

ON U.S. SAY-SO: Note in the above VFA paragraph that:

Even before it knew what criminal offenses could be committed by visiting American forces, the Philippine government already agreed in advance and in writing to waive primary jurisdiction “upon request by the United States.” All that was needed was a US request and that was it!

Yes, there was still a chance to hold on to primary jurisdiction — if the Philippines told the US within 20 days of the request for waiver that the case is of “particular importance” to the Philippine government.

Apparently the alleged raping of a Filipina by several GIs is not particularly important to the Arroyo administration, so the government did not say so early enough. After 20 days, it thus lost primary jurisdiction over the incident.

It is not the fault of the US if the Arroyo administration is not keen on asserting itself. Alangan naman ang US pa ang magpo-protect ng ating interests.

That the US embassy moves to protect its citizens in trouble is to be expected. In fact, it is to be commended for that.

Of course the Americans have an added advantage in that there is Raul Gonzalez at the justice department.

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(First published in the Philippine STAR of March 21, 2006)

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