I was one of those who opposed the Visiting Forces Agreement when it was being negotiated during the final months of the Ramos presidency. I was convinced that the country did not need it; we faced no external threat. I also felt vaguely that it was not the right time to invite US troops back into the country. The conflicts generated by the US bases were still very fresh. We were just beginning to learn what self-reliance meant.
I was very disappointed that the newly-elected president, Joseph Estrada, supported the VFA. As senator, he had been one of the staunchest critics of the US bases. The wording of the agreement as ratified by the Senate left many contentious issues hanging. Among these were the issues pertaining to criminal jurisdiction and custody. They were the same issues that had caused so much public resentment against US forces during their long stay in the country. The VFA leaned heavily on the side of the US military authorities.
Its provision on custody is now the subject of a potentially disruptive controversy: “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.”
Philippine officials say this phraseology is standard in almost all status-of-forces agreements (Sofa) between the US and other countries.
I wanted to know if this is true, and so I looked up the text of the Status-of-Forces Agreement between the US and the Republic of Korea. The formulation is indeed quite familiar. This is how the 1966 US-ROK clause on custody reads: “The custody of an accused member of the United States armed forces or civilian component, or of a dependent, over whom the Republic of Korea is to exercise jurisdiction shall, if he is in the hands of the military authorities of the United States remain with the military authorities of the United States pending the conclusion of all judicial proceedings and until custody is requested by the authorities of the Republic of Korea. If he is in the hands of the Republic of Korea, he shall, on request, be handed over to the military authorities of the United States and remain in their custody pending completion of all judicial proceedings and until custody is requested by the authorities of the Republic of Korea.”
This paragraph was however amended in January 2001 to read as follows: “The custody of an accused member of the United States armed forces or civilian component, or of a dependent, over whom the Republic of Korea is to exercise jurisdiction shall remain with the military authorities of the United States until he is indicted by the Republic of Korea.”
It is important to bear in mind that, on account of its security problems with North Korea, South Korea has had to play host to US forces and facilities since the end of the Korean War. While indeed a growing number of young South Koreans today believe they are better off without the American presence, it is easy to see why Korea would do everything not to antagonize the US. Yet, when it was necessary to do so, it did not hesitate to assert its sovereign rights if only to avoid irritants in the relationship.
The amended US-ROK Sofa is a very detailed document. One can almost imagine from its cautiously worded provisions the long trail of past misunderstandings that must have framed the review process. But, what I find particularly striking in the text is the delicate balancing of sovereign rights with the concern to maintain gracious relations with the other country. What comes out unambiguously is the mutual readiness to accede to any request or to set aside a prerogative in cases deemed particularly important by the other party. This seems to resonate an unspoken rule in diplomatic relations.
On close reading, one realizes how the US-RP VFA is itself infused with the same general tenor of graciousness — so antithetical to the pervasive distrust with which many Filipinos view relations with the US. It is as if the feeling of having been repeatedly betrayed had lodged itself so deep in our collective psyche that we cannot rise above our resentments. Our lack of confidence in our own leaders’ capacity to properly represent the nation’s interests keeps us always on guard against other powers that might take advantage of our weakness. This poisoned attitude has prevented us from having a normal relationship with our former colonial master. But, curiously, it has not stopped us from bartering our sovereignty for some measly assistance.
I think I now have a clearer understanding of why I was from the start opposed to the VFA: we are not ready psychologically to deal with America. America rekindles our colonial instincts and resentments.
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