The question of impunity now lies at the doorstep of Kristie Kenney as she winds down her stint as US ambassador to the Philippines. On one hand, having upheld the validity of the Visiting Forces Agreement, the Supreme Court has rendered a judgment favorable to the Philippine and American governments. On the other hand, having decided as well that there are no ifs, ands or buts about the kind of custody — Philippine and no other — in which American servicemen convicted of crimes in the Philippines ought to be kept, the United States, in particular the new administration of President Barack Obama, now risks having its bluff being called.
America is being called upon to prove that its commitment to a new kind relationship with both friends and foes is a substantive and not merely a rhetorical departure from the Bush years. Kenny, as a career diplomat, hewed closely to Washington’s supremacist attitudes, but at the end of her tour of duty in Manila, she is now the human face of a new political dispensation.
In its decision, penned by Justice Adolfo Azcuna, the Supreme Court concluded that the Visiting Forces Agreement (VFA) is an agreement that falls under the ambit of the Philippine-US Mutual Defense Treaty, ratified by the senates of both countries, establishing a policy, that is, an alliance, between the two nations. The VFA, the Court said, removed one irritant dating back to the colonial period: the legal impunity enjoyed by American troops. It also noted that in general, the United States has complied faithfully with its obligations under the VFA.
But after the conviction of Lance Cpl. Daniel Smith, a new irritant arose over the question of custody which an agreement signed by Kenny and Foreign Secretary Alberto Romulo granted to the US Embassy.
Azcuna boiled down the issue of custody as follows: “It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after conviction, because they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be ‘by Philippine authorities.’ Therefore, the Romulo-Kenney Agreements of Dec. 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not ‘by Philippine authorities’.”
The Court has directed the secretary of foreign affairs “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.” This means Smith remains in US custody and will remain so, until the secretary of foreign affairs negotiates with the US government for a custody mechanism that first of all, places Smith firmly under the custody of Filipino authorities, while recognizing the rights of American authorities to have access to him.
What is significant here is that the Court clearly stated that the Romulo-Kenney agreement allowing American custody of Smith is unconstitutional. While the Executive Department up to this point can claim it acted in good faith, it is now duty-bound to act swiftly to resolve the matter according to the parameters defined by the Court.
The Gloria Macapagal-Arroyo administration, which is desperately trying to toady to the new American administration, might be tempted to weasel out of the Supreme Court decision, and Kenney might stick to old habits and do the same by delaying matters. But this is an opportune time for the Philippine government to negotiate the matter for now it can do so from a position of strength.
The new American administration has to accede to the eminently moderate judgment of our Supreme Court. To do otherwise or to drag things out is to start inching down the same trail of impunity that led to the new Obama administration to make the elimination of the Guantanamo detention facility one of its first major acts.
On the other hand, to refuse to negotiate the matter swiftly or to dilly-dally on the transfer of custody to Filipino hands might provide the firmest basis yet for impeaching President Arroyo later this year.