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The RP–US Visiting Forces Agreement is a bilateral agreement between the Philippines and the United States consisting of two separate agreement documents. The first of these documents is commonly referred to as "the VFA" or "VFA-1",[1] and the second as "VFA-2" or "the Counterpart Agreement".[2] Both documents became effective on May 27, 1999, upon ratification by the Philippine Senate. [3] [8], [10] The United States government regards these documents as Executive Agreements not requiring approval by the U.S. Senate. [3] [42]
The term "VFA" is usually used in the Philippines to refer specifically to just the first of these two documents, which has been the subject of continuing controversy in the Philippines.
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The primary effect of the Agreement is that it allows the U.S. government to retain jurisdiction over U.S. military personnel accused of committing crimes in the Philippines, unless the crimes are of "particular" importance to the Philippines. This means that for crimes without this significance, the U.S. can refuse to detain or arrest accused personnel, or may instead prosecute them under U.S. jurisdiction. The Agreement also exempts U.S. military personnel from visa and passport regulations in the Philippines.
The Agreement contains various procedural safeguards which amongst other things establish the right to due process and proscribe double jeopardy. The Agreement also prevents U.S. military personnel from being tried in Filipino religious or military courts[1][V 11]; requires both governments to waive any claims concerning loss of materials (though it does require that the U.S. honor contractual arrangements and comply with U.S. law regarding payment of just and reasonable compensation in settlement of meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of United States personnel)[1][VI]; exempts material exported and imported by the military from duties or taxes [1][VII]; and allows unrestricted movement of U.S. vessels and aircraft in the Philippines [1][VIII].
The U.S. has at least twice used the Agreement to keep accused military personnel under U.S. jurisdiction.[4] [5] This most recently occurred on January 18, 2006, when the U.S. refused to hand over custody four soldiers accused of rape during the period of their trial in Filipino courts.[5] This has led to unrest amongst many in the Philippines, who believe that the Agreement is one-sided, prejudicial to Filipinos, and a fetter on the sovereignty of the Philippines. The Agreement is seen by some Filipinos as granting immunity from prosecution to U.S. military personnel who commit crimes against Filipinos, and is seen by some as treating Filipinos as second class citizens in their own country. As a result of these issues, in 2006 the Philippine government considered terminating the VFA.[6] [7]
A Legislative Oversight Committee on the Visiting Forces Agreement (LOVFA), formed in 2004 and chaired by Senator Miriam Defensor-Santiago, was reconvened in 2009 to review the pact to set clearer guidelines on how US soldiers accused of crimes should be treated.[8] By November 2009, the Committee had gathered inputs from different sectors as a prelude to the series of public hearings aimed at formulating a report to Congress on the implementation of the VFA. Senator Santiago said, "Some of the issues raised include the guidelines on the custody of US military personnel who commit an actionable offense in the Philippines, and the silence of the VFA both on how long the ‘visiting’ forces may stay in our country and what activities they may do while they are here,". Senator Loren Legarda said, "Eleven years after 1999 when a divided Senate concurred in the ratification of this agreement, there is now a clamor from members of Congress, non-government organizations, and even the executive to review or even terminate the same. This review of the VFA is in order,".[9]
The constitutionality of the VFA was challenged in Bayan v. Zamora, which the Supreme Court of the Philippines, sitting En banc, dismissed on October 10, 2000.[10] A second challenge, Suzette Nicolas y Sombilon Vs. Alberto Romulo, et al. / Jovito R. Salonga, et al. Vs. Daniel Smith, et al. / Bagong Alyansang Makabayan, et al. Vs. President Gloria Macapagal-Arroyo, et al. submitted on January 2, 2007, was decided on February 11, 2009, again by the Supreme Court sitting En banc. In deciding this second challenge, the court voted 9-4 with two justices inhibiting in support of a decision that, "The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, ...". The decision continued, specifically relating to matters relevant to the Subic rape case, "... the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court."[11] UP Professor Harry Roque, counsel for former senator Jovito Salonga, one of the petitioners in the case, said in a phone interview regarding the decision on the constitunality of the VFA. "We will appeal, ... We are hoping we could convince the other justices to join the four dissenters."[12]
The primary effect of the Agreement is to require the U.S. government (1) to notify RP authorities when it becomes aware of the apprehension, arrest or detention of any RP personnel visiting the U.S. and (2) when so requested by the RP government, to ask the appropriate authorities to waive jurisdiction in favor of RP, except cases of special interest to the U.S. departments of State or Defense. [2][VIII 1] (Waiving of jurisdiction in the U.S. is complicated by United States being a Confederation of States in which each individual state has its own judicial system, and the U.S. Federal Government not being in a position to simply order a State to waive jurisdiction).
The Agreement contains various procedural safeguards which amongst other things establish the right to due process and proscribe double jeopardy[2][VIII 2-6]. The agreement also, among other provisions, exempts RP personnel from visa formalities and guarantees expedited entry and exit processing[2][IV]; requires the U.S. to accept RP driving licenses[2][V]; allows RP personnel to carry arms at U.S. military installations while on duty[2][VI]; provides personal tax exemptions and import/export duty exclusions for RP personnel[2][X, XI]; requires the U.S. to provide health care to RP personnel[2][XIV]; and exempts RP vehicles, vessels, and aircraft from landing or ports fees, navigation or overflight charges, road tolls or any other charges for the use of U.S. military installations[2][XV].