Even as the petition challenging the constitutionality of the Philippines' Visiting Forces Agreement (VFA) with the United States awaits judgment at the Supreme Court, a similar agreement, the Status of Visiting Forces Agreement (SOVFA) with Australia, is inching towards ratification at the Philippine Senate.

Signed in Canberra in May 2007, the agreement still needs the approval of 2/3 of the Senate's members for the agreement to take effect. The executive department transmitted the agreement in November last year and the Senate's committee on foreign relations held its first public hearing last February. Committee Chair Sen. Miriam Defensor-Santiago has indicated that no further committee hearings may be necessary and that the agreement may soon be submitted to the plenary for deliberations.

Quandary

The proposed ratification of the SOVFA comes in light of the controversy over the only other Status of Forces Agreement the Philippines has. The actual application of the provisions of the VFA with the US was recently put to the test in the trial of US Marines accused of raping a Filipina in November 2005. US and Philippine government officials invoked the VFA's provisions to justify the holding of the accused under US custody upon arrest and in the entire duration of the trial. A Philippine court subsequently found one US Marine guilty and ordered him imprisoned in a Philippine jail in December 2006. US and Philippine authorities again cited the VFA to defy the judge's order. Under pressure from the US, which cancelled scheduled military exercises with the Philippines to express its displeasure with the Philippine Court's order, Filipino officials promptly spirited the convicted rapist out of the Philippine jail. He remains locked in a cell inside the US embassy complex in Manila, US officials claim.

In light of the controversy generated by the rape case, the push for the SOVFA has put the Philippine government in a quandary. In trying to sell the new agreement, Manila has categorically stated that it has learned its lessons and that the SOVFA rectifies the VFA's faults. With this claim, various government officials have in effect chosen to admit that the VFA is flawed.

Differences

The SOVFA indeed features some differences from the VFA, such as, for example, an entire section on "environmental protection" and on "mortuary affairs." On the whole, however, the SOVFA hews closely to the template of the VFA such that in certain portions, its provisions were seemingly copied word-for-word from the VFA.

On the controversial aspect of criminal jurisdiction, for example, the SOVFA and VFA are very similar. On offenses punishable under the laws of both countries, jurisdiction will be concurrent, meaning the offender becomes subject to both Philippine and Australian laws and processes. As with the VFA, the Philippines cannot exercise primary jurisdiction if the Australian side claims that an action was carried out in performance of an "official duty." Unlike the VFA, however, Australia must "consult" with the Philippines on whether an action indeed falls under "official duty" and the Philippines has the final say. If, for example, an Australian soldier were accused of being complicit in the killing of innocent civilians or of other human rights violations, their Filipino victims would not be able to sue him or her in Philippine courts once Australian authorities claim, and Philippine authorities agree, that the action was carried out on "official duty."

Custody

On the issue of custody, SOVFA also appears to have slightly deviated from the VFA.

The VFA states that custody of troops over whom the Philippines is to exercise exclusive jurisdiction remains with the US (unless otherwise "requested") from the commission of the offense until the completion of judicial proceedings. The SOVFA, on the other hand, gives the Philippines custody of the accused during the trial period. Pending investigation, however, the Philippines would be able to detain the accused only if he or she were already in the hands of Philippine authorities. If he or she were already in the hands of Australian authorities, however, he or she would remain with the Australians (though in Philippine territory).

Upon conviction, the SOVFA states only that the accused "shall be confined and serve his or her sentence in accordance with the laws of the Receiving state." With this provision, the Philippines can claim that holding the convict within Philippine territory is what is in accord with Philippine laws. It is interesting to note, however, that, unlike for the period prior to investigation or during trial when the SOVFA specifies where exactly the accused would be held, this particular provision fails to explicitly state where the convict would be confined. Why the provision did not simply say that the accused would be held in the Philippines could again lend it to differing interpretation.

For all the differences, however, the SOVFA essentially seeks the same objectives for Australian troops as the VFA does for American soldiers: to apply the concept of the "Law of the Flag" or the idea that a country deploying military forces abroad should apply its own laws to its soldiers - and not that of the country where they are to be deployed. In other words, to SOVFA aims "to the extent negotiable" to exempt Australian troops from being subject to the same laws of the Philippines by according them a different legal "status." While Filipinos or other nationals who are accused of committing offenses in the Philippines will have to go through the normal judicial process that applies to everyone in the country, troops covered under the SOVFA will not.

Covert operations

As with the VFA, the SOVFA is being described as the agreement that will authorize Australian troops to conduct exercises in the Philippines. President Gloria Macapagal-Arroyo claims that "The SOFA is for training and intelligence fusion, not for operations, not for boots on the ground." The text of the SOVFA however states that Australian troops may come "for combined training, exercises or other activities mutually approved by the Parties." What are covered under "other activities" is not defined.

In fact, even without the SOVFA, a small number of Australian troops have been deploying to the Philippines ostensibly to train Filipino soldiers since 2001. In July and August 2004, Australian Special Forces had already come for joint training exercises. In 2005, the Australian press even reported that Australian police were conducting "covert operations" in the country. This was followed by reports that elite Australian troops had joined US and Filipino soldiers in operations against alleged terrorists in Mindanao.

Even without the SOVFA, Australia can opt to continue sending troops to the Philippines, as long as the Philippine government consents. It wants to secure the SOVFA, however, because without it, Australian troops would be subject to the laws of the Philippines as ordinary tourists.

What Australia wants through the SOVFA is to secure the legal guarantees and exemptions the agreement accords to its troops when they do choose to deploy to the Philippines. This, in essence, is what Status of Forces Agreements such as the SOVFA and VFA wish to avoid. In itself, it is not the SOVFA that legally allows the deployments.

Diversification?

The SOVFA has been seen as a signal that the Philippines is diversifying its alliances. One popular analyst has claimed that the SOVFA is "breaking the monopoly of the United States as the historic guarantor of the country's external security."

This would be accurate only if Australia were not one of the most loyal allies of the United States. No other country has fought side-by-side the US in all its major wars in the past century, including most recently in Afghanistan and Iraq. Though it evidently has its own distinct interests, Australia's foreign policy has been inseparable from that of the US.

As the influential American neo-conservative commentator Max Boot has pointed out, "We may be the global sheriff, but we need a posse to be effective, and Australia has been a stalwart member of that self-selected assemblage."

While Australia's new Labor government has fulfilled its electoral pledge to withdraw troops from Iraq, it is still unclear whether this signals a one-time deviation or a fundamental break in its foreign policy. Tellingly, the new government has pledged that its troops are to stay on with US and other troops in Afghanistan.

It has also announced that a far-reaching military agreement that the previous conservative government signed with Japan, another US ally, will not be revoked. Australia?s military relations with the US will presumably retain its alliance status.13

Consolidation

In this light, the SOVFA seeks to strengthen, rather than break, the chain of US allies in Asia and the world.

The military deployments, for which Australia wants to protect its troops through the SOVFA ? are part of a larger push to further deepen the military relationship between Australia and the Philippines by expanding Australian military presence in the country.

In October 2005, Australian Defense Minister Robert Hill proposed that Australian troops not only train Philippine troops but also participate in maritime surveillance ostensibly against terrorists across the Sulu and Celebes Seas.

Upon the signing of the SOVFA, Australia announced that it will give the Philippine military 28 brand new airboats worth $4-million for use in internal security operations.

Along with the US, Australia is now helping the Philippines build radar stations, surface vessels, aircraft and communication equipment to patrol the country?s southern borders.