POSTSCRIPT / December 21, 2014 / Sunday

By FEDERICO D. PASCUAL JR.

Opinion Columnist

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No recourse but to terminate VFA

TERMINATE IT!: Instead of allowing itself to be led by the nose by the United States on the Laude murder case, the Philippine government should immediately serve notice of its intention to amend the 1998 Visiting Forces Agreement on criminal jurisdiction and other issues.

Failing that — since the VFA has no provision for renegotiation or amendment – the Philippine government should then move one step up and notify the US that it is terminating the contract after the agreed 180-day notice.

Depending on the political mood on both sides, the notice of termination should force a renegotiation even if the procedure for rewriting the VFA is not in the text of the agreement.

The big question is if President Noynoy Aquino is ready to play power poker.

* * *

IMPLICATIONS: What if the US bluffs and says it was amenable to dropping (terminating) the VFA altogether? So be it!

Termination puts an end to the Philippine humiliation of having a foreign power, claiming to be a friend and ally, mock its judicial process by refusing to surrender custody to a proper court of US Marine Cpl. Joseph Scott Pemberton accused of murdering a Filipino.

Termination means there will be no more VFA and its Article V (Criminal Jurisdiction) that the US invokes in its splitting-hairs argument that while the Olongapo court has jurisdiction over the case, custody of the accused Pemberton remains with the US.

With VFA terminated, only pertinent Philippine laws and local court procedures will control. The Olongapo court will then have sole and exclusive jurisdiction and custody of the US marine.

* * *

HARD BALL: In lieu of the VFA, the US cannot invoke the older Mutual Defense Treaty and the still-to-be-formalized Enhanced Defense Cooperation Agreement. They do not apply,

What will apply is power politics. President Aquino better be ready to play hard ball.

The mighty United States can pressure President Aquino and the array of business interests controlling to a great extent the actuations of the sitting administration.

President Aquino should be able to withstand the pressure since he is not running – and cannot run even if he wanted to — for reelection. He can just wave goodbye to the mess.To pressure him in his last two years, the White House will have to pull other levers.

Believing in Filipino resiliency, I dare say that we can survive any US move to make it hard for us.

* * *

US VERSION: At this point, it seems Malacañang is already feeling the pressure.

We now have an anomaly where the Philippines itself is going into contortions justifying Pemberton’s staying outside its custody and being held in the exclusive embrace of the US. Malacañang itself is already surrendering a sovereign point.

Listen to the spokesman of the Department of Foreign Affairs speak on the Pemberton case and weep. He twists and mumbles his assigned lines justifying US custody.

US Ambassador Philip Goldberg joins in explaining the Philippine befuddlement, saying that authorities on both sides are working out a “common interpretation” of the contentious VFA provision on criminal jurisdiction and custody.

We are not holding our breath. As sure as Pemberton will be freed and some Laude family members awarded US visas, the “common interpretation” being sought will be substantially the American version.

* * *

THE TEXT: For quick reference of readers, here is the text of Section 6 of Article V in question:

“6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one year period will not include the time necessary to appeal. Also, the one year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so.”

* * *

MANILA YIELDING: Goldberg said in a TV interview: “We are going back and forth about this issue but at the same time working out what I think are mutually satisfactory solutions so that we can keep the suspect for example – as we have in Camp Aguinaldo – where we both have a role in making sure the suspect appears for trial.”

He explained: “We have certain legal and service-related obligations to a US soldier, who is in this case a Marine.”

But a helpless foreign office appears to have surrendered, saying it would no longer contest US custody of Pemberton. The US justification for keeping him while on trial, it added, was “not inconsistent” with the VFA.

The devil is in the details of the VFA that then President Fidel V. Ramos allowed into the body of lopsided contracts with the US.

This brings us to our original point: Let us move for amendment. Failing that, serve notice of termination (to take affect after 180 days) to force the reopening of substantive renegotiations.

Without the VFA, Pemberton will have to be taken into custody by a Philippine court.

(First published in the Philippine STAR of December 21, 2014)

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