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Can Smith Case Be Deemed “Extraordinary” As Defined in Japan-US SOFA (VFA)?

February 26, 2009


At least 11 people were hurt yesterday as police broke up a noisy demonstration organized by militant group of protesters denouncing the unresolved custody of American Lance Corporal Daniel Smith while the Court of Appeals reviews the lower court finding that he raped a Filipina in Subic in 2006. Filipina.

The incident highlights the simmering public disquiet not only over Smith but also the controversial Visiting Forces Agreement which at least 9 Senators want to be abrogated.

The controversy is complex given that the VFA (forged in the wake of the 1991 Senate rejection of the continued existence of US military bases) is anchored on the circa 1951 RP-US Mutual Defense Treaty

While the MDT remains in force, critics of the VFA see it as grossly unfair.
Against this backdrop, the Department of Foreign Affairs has posted a 6-point “Fact Sheet” citing the benefits derives from the agreement.


A document also in the DFA website archives is the January 19 statement of Foreign Affairs Secretary Alberto Romulo which was read during a Senate hesaring on the VFA.


An interesting aspect that Sec, Romulo refers to in his statement is the matter of Smith’s case being considered “an extraordinary case” as defined in a similar existing ‘status of forces agreement’ or SOFA between the United States and Japan, their equivalent term for VFA.

An examination of the 19-page document shows this broad but apparently relevant proviso:
“…9.(a) The United States shall not claim immunity from the jurisdiction of
the courts of Japan for members or employees of the United States armed forces in respect of the civil jurisdiction of the courts of Japan except to the extent provided in paragraph 5 (f) of this Article.”

The question will then be whether  in the renegotiation of the custodial arrangement for Smith the Philippines will be able to obtain American approval of the treatment of Smith’s rape case as being covered by this exclusion.

That could likely be a “very sticky issue,” according to a seasoned international and constitutional law expert this writer consulted.

However a mutually accepted resolution of the same may very well help to ease the anger of militant quarters in the medium-to-long-term acceptance of the VFA as it currently worded, or its revision to make it palatable to the Filipino public.

In an extreme scenario, however, the move by some to get the VFA abrogated or declared unconstitutional altogether will surely impact on the long term ‘good health of the diplomatic and military cooperation activities of the Philippines and the United States.

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