BACKGOUND ON THE VFA/DANIEL SMITH CONTROVERSY

Lately, we have been hearing a lot of noise about the Visiting Forces Agreement (VFA) brought forth with the recent decision of the Supreme Court in the Suzette Nicolas rape case. For those of you who want to be in-the-know and weigh in on the issue, this is a brief summary.

In December 2006, US Marine Lance Corporal Daniel Smith was convicted by the Makati Regional Trial Court for raping a certain Suzette Nicolas while participating in joint military exercises with Philippine armed forces pursuant to the VFA between the United States and the Philippines concluded in 1998.

While detained at the Makati city jail he was transferred to the US Embassy in Manila by agreement between the Philippine Department of Foreign Affairs (DFA) and the US Ambassador to the Philippines known as Romulo-Kenney Agreement, purportedly in accordance with the VFA.

Suzette Nicolas and others, via petition to the Supreme Court, sought the transfer of Smith back to Philippine detention facilities on the ground that the VFA and the Romulo-Kenney Agreement were void for being contrary to the constitutional provision that requires agreements or treaties involving foreign troops presence in the Philippines to be recognized as treaties by countries to which such foreign troops belong. It was argued that, contrary to the constitutional requirement, the VFA was not recognized as a treaty by the United States. Some senators and cause-oriented groups decried the unequal treatment the United States has accorded us by not submitting the VFA for the concurrence of its Senate as provided in their Constitution concerning treaties, in the same manner that our own Senate had done so.

On February 11, 2009, the Supreme Court ruled that while the US did not submit the VFA for concurrence by its Senate, the VFA has been recognized by representatives of the United States as a binding international agreement regardless of how it is denominated, whether as a treaty or executive agreement. As such it does not ran afoul of our constitutional requirement. Besides, the Supreme Court found the VFA as an implementation of the 1951 RP-US Mutual Defense Treaty, and this treaty has been concurred in by the US Senate.

But our senators, chiefly Fancis “Kiko” Pangilinan and Joker Arroyo, are not satisfied and are moving for the abrogation of the VFA. What do you think?