The Subic Rape Case in Relation to the Visiting Forces Agreement (VFA)

(N.B. You may also download the English and Filipino versions of this primer by clicking the links provided.)

1. What is the Visiting Forces Agreement?

The VFA is an agreement between the Philippines and the United States of America signed on February 10, 1998 and ratified by the Senate of the Philippines in 1999. The said agreement grants American soldiers and civil employees of the US Department of Defense visiting the Philippines special rights and privileges.

The VFA is in fact a form of Status of Forces Agreement (SOFA), although different from the SOFA of other countries with US bases. When the US still had military bases in the country, the SOFA was included in the RP-US Military Bases Agreement.

The VFA was signed at a time when there were no longerUS military bases or facilities in the country. Hence the entire Philippine territory is under the VFA. A separate agreement through a VFA II is set for Filipino soldiers visiting the US. But instead of rights and privileges equal to American soldiers here in the Philippines, the said version puts the Filipino soldiers under the jurisdiction of American court and laws, especially if there are any violations involved. The only notable privilege given to them is the entitlement to shop PX goods at military commissaries!

2. Why does the US need agreements like the VFA?

The US needs ports, training facilities and logistical bases for their continuing participation, occupation of and war activities on different parts of the world, especially those in the Middle East. An agreement like the VFA is needed by the US to make the Philippines a support base for US military operations in places like Afghanistan and Iraq. The US, too, is the primary military support of Israel in its attack and aggressive occupation of Lebanon.

3. What are the controversial provisions of the VFA?

A. As a whole, the VFA is against the provision of the Philippine constitution that states and guarantees “equal protection before the law” because it gives special privileges and rights to uniformed and civil members of the US Defense Department. These are rights and privileges that are not given to the ordinary Filipino citizen.

B. In Article I of the VFA, “Definitions,” the American military and civilians are allowed to perform “activities” agreed upon by the Philippine government. It is not even made clear what these activities are. Combat? Training? Spying or espionage? “Rest and Recreation”?

C. It is also vague as to what “temporary” stay or visit to the country means. One week? One month? One year or longer? A PERMANENT AMERICAN CAMP IS NOW EVEN BUILT INSIDE THE SOUTHCOM CAMP IN ZAMBOANGA CITY, ACCORDING TO THE TESTIMONY OF SUBIC RAPE CASE VICTIM NICOLE.

D. It is also not mentioned who among the Philippine government officials will approve of the “activities” of the American troops in the Philippines. Foreign Affairs secretary Domingo Siazon proclaimed before that the RP-US Mutual Defense Board (MDB) is the one which will approve of the “activities” of the Americans in the country. But since the MDB is a joint board of the US military in the country, it would not be considered under the jurisdiction of the Philippine government.

E. The VFA does not set the number of American troops to be designated in the
Philippines within a period of time. It may reach hundreds or thousands of American soldiers.

4. Why is the VFA considered a bastardization of Philippine sovereignty?

First, under the VFA provisions, the Americans have no respect or regard for our laws and regulations. It is they who are the visitors, yet they want them to reign and set laws and regulations for themselves in our own homeland and territory. Second, in Article V of the VFA, “official acts” needing “official duty certificate” do not include the heinous crimes of the American soldiers in the Philippines, who may even avoid the jurisdiction of Philippine laws and court that will try their cases.

It is only now that we can see the situation of “extra-territoriality” awarded to foreign soldiers in the whole territory of a free country. While the US bases are still here, these “extra-territorial rights” are allowed only inside the US military bases. But even in the crimes that occurred outside the bases, however, not one guilty American soldier is punished for the crimes of murder, rape, or mauling committed against Filipinos. Under Article VIII of the VFA, there is no limitation in the “access” of the American troops in the Philippines, even in the remotest areas in the country. There is no hindrance in the liberal actions offered by the VFA to the US wherever portion of the country there may be.

5. What are the special privileges given to American soldiers under the VFA?

Exemption from Philippine regulations

Under Articles III, IV, VII, and VIII of the VFA, special privileges, which are denied to ordinary Filipino citizens, are endowed upon the American troops. Assigned or visiting American soldiers need not abide by laws and regulations regarding:

  • Passport and visa
  • Driver’s license
  • Vehicle registration
  • Payment of custom duties and taxes

These privileges are incredible because these are rights and privileges not given even to the highest officials of the armed forces or diplomats visiting the US or staying in the
Philippines.

Criminal Jurisdiction

Under Article V, “Criminal Jurisdiction,” the American soldiers who violated our laws or committed a crime are given a special process in Philippine trial. First, while they are being tried under a Philippine court even for non-bailable heinous crimes, they are taken under the custody of the Embassy or US authorities. Second, the Philippine court is given only a one-year period to finish proceedings. Otherwise, US no longer has the duty to present the accused to the court. Third, the VFA prohibits the trial of American soldiers in the sharia’h court of the ARMM, which is still recognized by the Philippine constitution.

Claims

Under Article VI, “Claims,” both countries voluntarily waive their right to asking damages for what might be caused by combat and non-combat operations under the VFA in any part of Philippine territory. This is despite the use of the American soldiers of live ammunition and explosives in military exercises that are dangerous to human lives and the environment.

The Philippines should not waive its right to any damages caused by activities of the American troops. The US military training, in fact, have already been reprimanded for its unilateral training operations in the Philippines by the VFA Commission, formed to monitor violations in the implementation of the VFA. While Teofisto Guingona was Vice-President and secretary of foreign affairs, he complained about the unilateral operations of the US in Philippine territory that excluded the AFP in military operations. The said operations were conducted in Batanes, Clark and Cordillera. These were also contended by former DFA officials like VFA Commision director Elmer Cato and DFA Undersecretary and VFA commissioner Amado Valdez, reporting such violations of VFA provisions. They were both removed from the VFA Commission by the DFA.

Allowing restricted nuclear arms

There is no provision in the VFA restricting American soldiers from bringing in nuclear arms. This is despite the strict constraint in the constitution. And this is the insult we get: VFA mentioning only a “certificate against quarantible diseases.” The said quarantine inspection will also be implemented by the US military commander, who also releases certificates eve while they are the visitors entering the
Philippines.

6. What is the connection of the Subic rape case trial to the VFA?

The rape case filed by a Filipina against American soldiers in Subic exemplifies the irreverence of the US to Philippine laws and judicial processes. First, even while the case is a heinous, non-bailable crime, the US embassy maintains custody over the accused who remains out of prison. Second is the special treatment given to them since they are allowed to stay out of prison even during the trial period. Moreso, the courts here are given only a year to decide on a case. Otherwise, the American government will no longer have the responsibility to bring them before the court. That is why the Subic rape case is already encapsulated in the unequal provisions of the VFA. Aside from this, it seems that Philippine government officials are even siding with the accused soldiers according to their public pronouncements.

7. In what way is the VFA serving as an obstruction to the rape case proceedings?

The VFA is hindering the trials proceedings of the Subic rape case through the one-year period given by it to the court, which sacrifices the quality of the presentation of the prosecution. The time given to resolve the case will last up to December 27, 2006, after which no accused will be presented by the US Embassy and instead be transferred to the US or outside the Philippines. The VFA promotes the interest of the
United States that shows no respect to our proceedings

8. What are the possible ways to help bring justice to the rape case?

First, guard the events within the trial at the Makati Regional Trial Court every Monday-Tuesday-Thursday-Friday, 1-5 pm. Second, expose the assaults on the character of the victim spread by the Americans and their lawyers. Third, anchor this case to the unequal, unjust VFA that adheres to and promotes the interest and dominance of the US. Expose how it smashes the honor not only of Nicole but of the Filipino people, and how this strengthens the unequal relations between the Philippines and the US.

9. What other dangers are posed by the VFA to the Philippines?

A. Involvement in the US war waged in places such as the Middle East, where many OFWS are. This is because we allow the use of our territory by the American war soldiers deployed in different parts of the world

B. Intervention of the US to the Philippines such as counter-insurgency and in internal affairs

C. Destruction of the environment due to live fire ammunition and canyon used in military exercises

D. Danger to life, honor, safety, and peace of the citizens, like what happened to Nicole and to the other Filipinos threatened since the VFA was signed

E. Hazard from nuclear arms brought by US war ships and planes

23 Comments

  1. Jay-R G. Robles said,

    December 12, 2006 at 6:10 am

    the vfa is unfair.
    we should not look 4ward on vfa and we should reformat it
    the philippines is governed by the america

  2. MARIA said,

    December 23, 2006 at 8:42 am

    all i can say VFA is good to our country. those statements above are rubbish.

  3. mrumr said,

    January 20, 2007 at 6:30 pm

    VFA entered in Philippines Law. The VFA is conjugated. Wether we like it or not SMith should be in the Custody of the US. Salonga and Tanada are those ancient politicians were faded about there knowledge.

  4. kosa said,

    January 21, 2007 at 1:41 pm

    i guess the government should realize that their responsibility is to ensure their people’s welfare among others. mas pinoprotektahan pa ng mga nasa posisyon ang political interests nila kahit na malinaw na pambubusabos na ang ginagawa sa mamamayan nito. its sad to know na may mga tulad ni maria(from one of d comments) na hindi marunong mag-suri.

    ***junk vfa!

  5. sibz2000 said,

    January 23, 2007 at 7:33 am

    i say that its not the agreement thats wrong everything is said there and its good coz U.S. is our ally its the people that didnt follow the agreement it says all there.. i think the people out there are afraid with the U.S.

  6. beverly said,

    January 25, 2007 at 9:07 am

    VFA is a good thing if both countries would respect the rules and regulations, but if the they don’t, then bigger problems would arise..and there would be greater feuds especially if the ones who are beiong affected by it are the citizens …why not put aside our hate for a while and instead find more ways to develop the country.

  7. virginia said,

    January 30, 2007 at 12:59 am

    junk vfa!!!!!!!!!!!

    just like what happened, kawawa si nicole dhil sa vfa na wlang ibang nkinabang kundi ang mga tuta ng kano!!!!!!!!!!!!!!!1

  8. miliza said,

    February 2, 2007 at 8:04 am

    whether it’s in the law, the question is does it need to be abolish? For years, Filipinos have stayed in ignorance in relations with the Americans. Respect me if I say, the government does need the vfa because they could profit for it. If we think that we would be paralyzed without the State’s aid, then we will always be. Let’s learn to stand on our own, but still it would take too long…with Phil.Gov. system???naahhh, i do hope so!!

  9. reymark said,

    February 6, 2007 at 10:51 am

    the statements above are fair stated… but for my opinion this VFA thing can only
    destroy the lives of all Filipino’s. Look what have happened to Nicole, at this very moment shes celebrating that she have won the case. The things happening in our country is part of a socio-political issues, serenaded with the people here in the Philippines it is a act of abusing the law of our country. We are already involved to the wars happening in the world. We are just returning to 1900 to 1950 happenings. Many people were affected of this war, particularly the counties that were consider part of the allied force. Look at the first question written at the top, there was this VFA II agreement that was filed in America, but the agreement that were written in this file was not the same as the agreement that was signed here in our country.

  10. mark nino de asis said,

    February 22, 2007 at 3:47 pm

    Even the higest law violated by the VFA. The constitution itself became a dot compared to that VFA circle.What will be the first to protect? Is it the national interest or a foreign “irrverent” treaty? Are politicians today encumbering from long spell? What happen to the equal protection clause? I think, we should consult first our dependent culture to the US. We, the Filipino people,especially those lawmakers who were topnotch lawyers, congressmen, and senators, couldn’t use our minds when dealing with white eagles. Ang problema nasa dugo natin, alam naman natin na dehado tayo sa kanila nagpapadehado pa tayo.Lalo na yung mga ibinoto natin, they are “PIMPS” to prostitute us from the white abusiveness in exchange for “POLITICAL INTEREST” AND “PERPETUAL POWER”. Tingin ko mas matalino pa ako sa mga hunghang na mga mababatas ng ating kawawang bansa.

    I hope someday that this nation will produce a more nationalistic hero to contradict the ‘American Dream” and present a more definitive ” FILIPINO DREAM POLICY”

    SUCK the POLITICIANS !!!MABUHAY ANG PILIPINAS sUCK U.S.A.

  11. Yoha said,

    February 24, 2007 at 6:18 am

    The VFA is total humbug. It gives right to US personnel such as that they do not need to abide the laws like passport and visa, driver’s license and the like. It seems that VFA is all for the Americans, Americans and Americans. What about the Filipinos? How come they need to abide by laws like the driver’s license and such? The VFA itself violates the Philippines Constitution. I believe it needs to be abolished or reformatted, at the very least. The Americans, visiting the Philippines, should respect our law. Every word, every line, every letter of the Philippine Constitution. I do not believe that we need the U.S. The U.S. needs US, the PHILIPPINES.

  12. estella said,

    April 2, 2008 at 12:48 pm

    Everyone is entitled to their own opinion. I’m not saying you guys are wrong or anything. I just want to say this, just because some Americans made bad choices and mistreated some people or whatever, doesn’t mean that all Americans are like that. Not all of them act that way. Some Filipinos break the law in the US too, but the Americans don’t start hating Filipinos because of it.
    Also, I’m not taking anybody’s side, but the girls were obviously not drinkers. They don’t know much about drinks, that’s why the guys ordered drinks for them. Ahm.. hello! If you’re not a drinker, why drink? Why drink that much, and on an empty stomach? That’s foolish! You could’ve said no, you didn’t want anymore drinks, or could have asked for non alcoholic drinks instead. Oh and another thing, they obviously didn’t know these guys very well. Why would you go out drinking with guys you hardly know and get really drunk like that?

  13. joms said,

    February 18, 2009 at 6:35 am

    i pity ESTELLA for having such illogical commentary.

    VFA is not only an issue of an individual that gets drunk and being raped by the american soldiers. Even a mentally retarded person has a “human right”. And not only human rights are being violated by this agreement. The Philippine Constitution itself is being over ruled by the VFA which only serves for the interests of the US Government.

    It is evident that the Philippines is still being Colonialized by the US Government. And it is really depressing that the Country’s Political Leaders doesn’t seem to do anything to fight for the interests of its’ own people.

  14. Fred Smith said,

    February 23, 2009 at 3:47 pm

    “The VFA is total humbug. It gives right to US personnel such as that they do not need to abide the laws like passport and visa, driver’s license and the like. It seems that VFA is all for the Americans, Americans and Americans. What about the Filipinos? How come they need to abide by laws like the driver’s license and such?”

    You people need to get a clue. Look at the VFA2 it extends the same privileges to members of the AFP when they are sent for training or a school based in the US.

  15. monmon said,

    March 4, 2009 at 7:13 am

    i hate VFA..its unfair!

  16. DJB Rizalist said,

    March 23, 2009 at 12:01 am

    For those who’ve been following closely the Subic Bay Rape Case, please read this excerpt from Republic Act 8505, which was mentioned tonight on ABSCBN’s Media In Focus tv show with Cheche Lazaro by the lawyers Evalyn Ursua and Katrina Legarda:

    Rape Victim Assistance and Protection Act of 1998.

    Section 5. Protective Measures. – At any stage of the investigation, prosecution and trial of a complaint for rape, the police officer, the prosecutor, the court and its officers, as well as the parties to the complaint shall recognize the right to privacy of the offended party and the accused. Towards this end, the police officer, prosecutor, or the court to whom the complaint has been referred may, whenever necessary to ensure fair and impartial proceedings, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial and that the name and personal circumstances of the offended party and/or the accused, or any other information tending to establish their identities, and such circumstances or information on the complaint shall not be disclosed to the public.

    Most disingenuously and dishonestly neither of the two Lady Lawyers bothered to mention this entirely fair and reasonable parity of rights to privacy of BOTH the “offended party” and of the “accused.”

    Imagine indeed that Party A is accused of raping Party B. Until trial and appeals processes are exhausted we, the public, cannot really presume to know whether the accused is guilty or not, nor whether the accuser is telling the truth or not. Therefore it only stands to reason and the essential sense of fairness that the privacy of BOTH parties out to be kept out of the public domain.

    RA 8505 explicitly demands it as the solemn duty and responsibility of “the police officer, the prosecutor, the court and its officers, as well as the parties to the complaints”.

    The outrageous thing about Ursua’s and Legarda’s statements that were broadcast tonight was their accusation against the Philippine Daily Inquirer (and “anyone else who published the full real name and pictures of Nicole”) — that they had criminally violated this law, RA 8505 and three other similar laws, in their March 18 report on the recantation affidavit of Nicole. Yet is it not crystal clear that the principal obligation to maintain privacy of BOTH parties actually rests on the Courts and on the lawyers??

  17. kay said,

    March 26, 2009 at 4:26 pm

    for some reasons vfa has a good effect to our arm forces, it shares knowledge, techniques & strategies in battle & share informations that can help us protect our territories and prevent terrorist attack but the bad side about vfa is that is so unfair for the Filipino’s, it should be amended. the provision the gives special privileges to uniformed and civil employees of the us department should be abolish or can be retain and the same special previleges should apply to all Filipinos who are also member of the arm forces and also philippine law should apply to all even if your foreigner as long as you are standing in our territory.

  18. kururu said,

    September 25, 2009 at 5:26 pm

    I don’t know VFA and I don’t need to say something about it. You should all read the encyclical pacem in teris.

  19. MACKIe said,

    September 29, 2009 at 1:48 am

    I CAn saY It IS Helpfull to our Country…
    That’s All TNXX

  20. mary said,

    October 12, 2010 at 12:45 pm

    thanks for this site. i will be able to defend my side on our finals debate…
    Filipinos be careful and attentive to our environment..
    Thank you once again

  21. james pasco said,

    January 5, 2011 at 5:50 am

    i think we need to ” repeal or to reformat” the contents of VFA, put a definite meaning and also the real purpose of america, why the are here in our country.

  22. james pasco said,

    January 5, 2011 at 5:51 am

    i think we need to ” repeal or to reformat” the contents of VFA, put a definite meaning and also the real purpose of america, why they are here in our country.

  23. andrea said,

    January 21, 2011 at 1:10 pm

    for me ,Philippines really need the VFA to resolve terrorist in our country spec ially in mindanao and visayas,theres so many crimes in our country that needs to be investigate.carnapping,kidnapping,etc. are always been the problem.all the american allies such as the south korea,pakistan,japan has VFA from US in their respected country,because they are also affected by terrorist.so in philippine case theres many terrorist in our country, and pilipino army are to weak to handle the situation of our country thats why we need the VFA of US.The philippine government are not that concerned of pilipino soldiers, has lack of practices and support from our government. But then US is very concern to pilipino soldiers.the subic rape case is just an invent accusation of the latter. she has a boy friend but why she still flirting with other men? thats the question that needs an honest answer.and this case always happened in other flirt girls,but not all pilipina women same of that girl, but why making it a big issue by our government.but then those chinese who supply marijuana and shabu in the philippines has never been an issue of the government,they are always been welcome by our government.I think this is just a trick,to make our country forbidden,and to make our country specially the policemen and soldiers, much more risky of terrorist and criminals and no one will take security of our country.there are many foreign nationals in our country, theres chinese,taiwanese,japanese,iran,pakistan,arab and not just westerns.I think we really need the VFA of US.


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