CONGRESS CALLS FOR TERMINATION/RENEGOTIATION OF

C O N F I D E N T I A L SECTION 01 OF 04 MANILA 000283

SIPDIS

DEPT FOR EAP, EAP/MTS, L/EAP, EAP/PD

E.O. 12958: DECL: 01/19/2016
TAGS: PREL MARR KCRM CASC RP
SUBJECT: CONGRESS CALLS FOR TERMINATION/RENEGOTIATION OF
VRA; GRP SEEKS MORE DIALOGUE

REF: A. MANILA 241


B. MANILA 218

C. MANILA 192 AND PREVIOUS

Classified By: Acting Pol/C Joseph L. Novak for reasons 1.4
(b) and (d).


1. (C) Summary: The Philippine Congress' Legislative
Oversight Committee on the Visiting Forces Agreement (VFA)
unanimously passed a non-binding resolution on January 19
calling for the termination of the VFA within six months and
its renegotiation into a Status of Forces Agreement (SOFA).
Apparently as a pre-emptive move, the Philippine Department
of Foreign Affairs (DFA) separately reiterated in a new
diplomatic note its earlier position on custody and expressed
desire for continued discussion with the USG on the issue of
custody. Rhetoric is high and politicians are clearly
seeking some political mileage, albeit in the absence of much
public emotion or interest. Embassy does not recommend a
response to this note at this time, although we should
prepare for an eventual discussion of possible exchange of
notes or even renegotiation of the VFA. Embassy would also
welcome formal guidance on seeking written assurances from
GRP that it will not try to obtain custody once the Marines
appear in judicial proceedings. We are also attempting to
determine why the GRP did not sent for COM signature as usual
at year-end the annual approval from the Council of Ministers
for the exercise and activity program recommended by the
Mutual Defense Board earlier in the year. End Summary.


2. (U) The Legislative Oversight Committee on the VFA met on
January 19 to discuss a non-binding resolution calling for
the termination of the VFA in the next six months and its
renegotiation into a SOFA that would contain "provisions on
local custody similar to those of the SOFA with Japan and
Korea." The resolution was unanimously approved by the
committee, but still requires full approval of the House and
Senate. (Full text in para 8.)


3. (SBU) The DFA on January 19 sent Embassy a new diplomatic
note reiterating its position on custody, noting serious
concern over difference in treatment of US military personnel
here vis-a-vis under agreements with other countries, and
expressing a wish to "continue discussions on this matter."
(Full text in para 9.)


4. (C) DFA Undersecretary for Special Concerns Rafael
Seguis separately told Charge on January 19 that the
diplomatic note was at the behest of Foreign Secretary Romulo
in Washington. Seguis indicated that the diplomatic note was
an attempt to deal with the mounting political pressure from
senators and others demanding that the GRP pursue the custody
matter again. Seguis noted that he had been called to
testify before the Oversight Committee during the afternoon
of January 19. CDA conveyed his hope that Seguis would use
his testimony as an opportunity to remind the Committee that
the VFA is working as designed. CDA further suggested, and
Seguis agreed, that it was important for the GRP to educate
the Philippine public and Congress as to how the VFA actually
works. CDA stressed that this case so far should be seen as
a "success story" for the VFA. Seguis said that he would
like to explore with the Oversight Committee additional
access to the Marines if the U.S. maintains custody. CDA
explained that the Embassy had offered in December to arrange
a meeting for Committee members, which they then postponed
until January, and have now postponed further until February

9. He noted that the Embassy would consider requests from
the Committee as well as VFA Commission and other relevant
GRP or court officials. He emphasized, however, that the
Embassy also had an obligation to protect the rights of the
accused, who were presumed innocent until proven guilty. and
would have to consult with their defense counsels as well,
before approving any visits. CDA assured U/S Seguis that the
Embassy remained fully willing to continue discussions with
the DFA and others in the GRP on this and all other matters,
while reiterating our expectation that diplomatic discussions
and communications should remain private.


5. (U) Olongopo City Regional Trial Court Judge Renato
Dilat told the media that "as far as I'm concerned the trial
should not be delayed just because the U.S. Embassy refused
to turn over custody of the accused," admitted that the VFA
was "part of the law of the land," and suggested the trial
could begin in February. Malacanang spokesman Ignacio Bunye
publicly urged that "we should not turn this into an
emotional issue against an old-time friend and ally."


6. (U) Embassy prepared and used the following press
guidance:


Q. Any reaction to vote in the Legislative Oversight
Committee of the Visiting Forces Agreement to terminate the
Visiting Forces Agreement?
-- The VFA is a mutually beneficial and useful framework
that clarifies the legal status of visiting U.S. military
personnel. The Agreement enables the U.S. and the
Philippines to conduct joint training exercises and naval
ship visits that help advance the national security of the
Philippines, and have helped train tens of thousands of
Philippine military personnel.

-- The U.S. will continue to cooperate with the Philippine
authorities as this case moves to trial under Philippine
jurisdiction, in accordance with the Visiting Forces
Agreement.


7. (C) Comment: Rhetoric remains high -- growing briefly --
as politicians seek to assert their nationalist credentials.
Public emotions nonetheless remain muted, apart from small
groups of leftist demonstrators. Even in Congress, attention
is much more focused on the issues of wiretapping
accusations, charter change, passage of the 2006 budget, and
the recent escape of some of the key Oakwood mutineers of

2003. The newest diplomatic note appears to be only a
placeholder and as such Embassy sees no real value in formal
response at this time. In the absence of formal quashing of
the arrest warrants, however, we would still welcome formal
guidance from Washington on whether or not to seek formal
assurances from the GRP that its law enforcement agents will
not attempt to serve any arrest warrants, before we allow the
four accused Marines off the Embassy compound. We should
also begin to prepare to an eventual discussion on possible
exchange of notes on controversial provisions of the VFA, or
even possible renegotiation at some future date. The VFA
remains a vital document in our military partnership and is
the backbone for our counterterrorism cooperation, including
under the proposed new Security Engagement Board. We note
with some concern that the GRP has not yet forwarded for the
Chief of Mission's signature (on behalf of the Council of
Ministers, along with Foreign Secretary Romulo) the formal
approval of the exercise and activity program recommended by
the Mutual Defense Board (Admiral Fallon and then AFP COS
General Abu) to the Council of Ministers in June 2005. We
are discreetly trying to find out if this is deliberate or an
oversight.



8. (U) Text of the resolution introduced by Senator
Santiago, which we understood is the version approved by the
full Oversight Committee:
quote

THIRTEENTH CONGRESS OF THE REPUBLIC)
OF THE PHILIPPINES )
Second Regular Session
)

SENATE

S. Ct., Res No.

Introduced by Senator Miriam Defensor Santiago

CONCURRENT RESOLUTION
EXPRESSING THE SENSE OF CONGRESS THAT
NOTICE OF TERMINATION SHOULD BE SERVED,
TO PAVE THE WAY FOR THE RENEGOTIATION OF THE VFA


WHEREAS, the R.P.-U.S. Visiting Forces Agreement (VFA) was
signed in Manila on 16 February 1998, and was subsequently
concurred in by the Philippine Senate; although no similar
action was taken by the U.S. Senate, reportedly because the
U.S. considers the VFA not as a treaty, but as an executive
agreement;

WHEREAS, the VFA, Article 5, Section 6 provides: "The custody
of any U.S. personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with U.S.
military authorities, if they so request, from the commission
of the offense until completion of all judicial proceedings;"

WHEREAS, the above provision of the VFA is a marked
difference from the Japan-U.S. Status of Forces Agreement
(SOFA),which provides in Article 17, Section 5 (c): "The
custody of an accused member of the United States armed
forces or the civilian component over whom Japan is to
exercise jurisdiction shall, if he is in the hands of the
United States, remain with the United States, until he is
charged by Japan;"

WHEREAS, the above provision of the VFA is also a marked
difference to the Korea-U.S. SOFA, as amended, which provides
in Article 22, Section 5 (c): "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;"

WHEREAS, the VFA, Article 5, Section 6 provides further: "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;"

WHEREAS, Senate Resolution No. 18, promulgated in 1999,
concerning "exceptional cases," provides that the Philippines
has the right "to reject a U.S. request for waiver of
Philippine primary jurisdiction in cases of particular
importance (to the host state),such as heinous crimes and
violations of the Dangerous Drugs Act, and Anti-Child Abuse
Law;"

WHEREAS, at the close of 2005, after preliminary
investigation, the state prosecutor in Olongapo City issued a
resolution to file in court an information for rape - which
is a heinous crime - against four U.S. Marines;

WHEREAS, after the information was filed in court, the
Philippine secretary of foreign affairs, in a diplomatic note
of 16 November 2005, citing the exception for "extraordinary
cases," requested from the U.S. Embassy actual physical
custody of the accused Marines;

WHEREAS, in its Note Verbale No. 0060 of 16 January 2006, the
U.S. Embassy rejected the Philippine request for custody;

WHEREAS, it appears that the U.S. government has failed to
properly take into account the high level of sensitivity with
which the Filipino public views the custody of U.S.
servicemen on Philippine territory accused of crimes such as
rape;

WHEREAS, the VFA does not contain a provision for revision or
renegotiation;

WHEREAS, the VFA, Article 9 provides: "This agreement shall
remain in force until the expiration of 180 days from the
date on which either party gives the other party notice in
writing that it desires to terminate the agreement;"

WHEREFORE, BE IT HEREBY RESOLVED by the Senate of the
Philippines, the House of Representatives concurring to
express the sense that notice of termination of the VFA
should be issued, in order to pave the way in the next six
months, for a renegotiation of the VFA into a SOFA, with
provisions on local custody similar to those of the SOFA with
Japan and Korea.

Adopted,


MIRIAM DEFENSOR SANTIAGO
end quote


9. (C) Text of Diplomatic Note received on January 19:

quote

No. 06-0103

The Department of Foreign Affairs presents its compliments to
the Embassy of the United States of America and, with
reference to the Embassy's Note No. 0060 dated 16 January
2006, has the honor to reiterate the position of the
Philippine Government as conveyed through the Department's
Note No. 05-2662 dated 16 November 2005, as follows:


"Pursuant to the exercise by the Philippines of its primary
right of Jurisdiction over the case as conveyed through the
Department's Note Verbale No.05-2579 and in view of the
non-receipt of a formal request for initial United States
custody over the United States military personnel involved in
the alleged rape relative to Article V. Paragraph 6 of the
Agreement and the extraordinary nature of the case, being a
heinous crime, the Department (Agreement between the Republic
of the Philippines and the United States of America Regarding
the Treatment of United States Armed Forces Personnel
Visiting the Philippines) requests the Embassy of the United
States to turn over custody of said U.S. military personnel
to Philippine authorities as soon as practicable."

On the specific issue of what constitutes an extraordinary
case in the context of Article V, Paragraph 6 of the
Agreement, the Department wishes to convey that by any
precepts of civilized society, rape, particularly under the
circumstances as alleged in the Subic Case, cannot be
considered as simply an "ordinary case" and should, by law,
by policy and by good conscience, be properly understood as
an "extraordinary case," as was the intent that governed when
the Philippines agreed to the inclusion of this formulation
in the Agreement. This intent was further amplified in
Philippine Senate Concurrence Resolution No.18, s. 1999.

In addition, while aware of the differences between the
Agreement and similar agreements entered into by the United
States, the Philippine Government is seriously concerned over
the patent disparity in the treatment of US military
personnel in other countries on the issue of custody in
criminal cases.

In the light of the decision of the United States Government
to maintain its position on the issue of custody during
trail, the Department of Foreign Affairs wishes to continue
discussions on this matter between the Philippine Government
and the United States Government.

The Department of Foreign Affairs avails itself of this
opportunity to renew to the Embassy of the United States the
Assurances of its highest consideration.

Pasay City, 17 January 2006

end quote
Bellard