Dec 262014

Chito ParazoThe bigger issue regarding the murder trial of U.S. Marine Joseph Pemberton which needs to be resolved without damaging the American-Philippine relations is who has the legal authority over the murder suspect.

Both the United States and the Philippines are claiming that their government has the right to claim legal custody of a U.S. military personnel under criminal investigation or indictment as stated in the Visiting Forces Agreement (VFA) in 1998.

If we are going to base it on a Philippine Supreme Court ruling handed down in 2009 involving another American military personnel accused of raping a Filipino woman also in Subic City, then it is the Philippine government which has legal custody of any American soldier accused of a crime if committed within Philippine jurisdiction. The United States is seeing it differently based on their own interpretation of the 1998 VFA.

It is the hope of everybody that both U.S. and Philippine government officials will be able to negotiate amicably the “custody issue” without damaging the cordial relationships nurtured through the years by both countries.

I hope too that they will resolve this sensitive issue before it becomes a full blown “tug-of-war” between both countries.

No less than President Aquino in a statement said that the case should not “sour” the country’s relations with the United States – the Philippine’s most important diplomatic and military ally. Because of what seems to be an unabated Chinese aggression in a long-running territorial dispute with the Philippines in the South China Sea, President Noynoy has been asking for greater American presence in the country.

Pemberton has been formally charged in court last week for the murder of Jeffrey “Jennifer” Laude, a Filipino transgender woman inside a motel in Subic city, Zambales. He will not be allowed to post  bail. Pemberton will serve a 40-year jail term if convicted. The Olongapo City Regional Trial Court  (RTC) issued last week a warrant for the arrest of Pemberton. Prosecutors found probable cause against the U.S. serviceman. They said Pemberton used “treachery, abuse of superior authority and cruelty” against the victim. Although Pemberton is incarcerated at the Joint US Military Assistance Group (JUSMAG) headquarters in Camp Aguinaldo since the start of the preliminary investigation in October, he is still not considered under Philippine custody since the place where he is right now is considered “U.S. territory.”

With the formal filing of murder charges against Pemberton, the court, through the Department of Foreign Affairs (DFA) , requested that the U.S. government transfer Pemberton to Philippine custody while undergoing trial.

However, the U.S. Embassy in Manila rejected the request and instead informed DFA that U.S. would retain custody of Pemberton as provided by the US-Philippine VFA, which  allows the temporary stay of American military forces in the country during military exercises.

Embassy officials were saying that under the VFA, which allows American soldiers to conduct military drills in the Philippines, the Philippine government can prosecute American servicemen but the U.S. government has custody over them “from the commission of the crime until the completion of all judicial proceedings.”

The U.S. government, through its embassy in Manila,  also reiterated its pledge to cooperate fully in the prosecution of the American soldier.

A press release coming from the U.S. Embassy also stated that the U.S. government will ensure that it will continue to work closely with the Philippine government to help ensure that justice is served and the rights of all persons are protected.

It added that the U.S. will make Pemberton available for all appearances required from time to time by the court in the course of his trial.

However, by not “honoring” its previous pledge to cooperate fully in the prosecution of Pemberton by not turning him over to the Philippine government, the DFA had expressed disappointment that its number one ally in Asia has chosen to invoke its rights under the VFA to maintain custody of the murder suspect.

Meanwhile, if Senator Miriam Defensor Santiago will have her way, she would rather have Pemberton detained at the overcrowded Manila City Jail for the murder of Laude. Santiago is the chairman of the Senate’s foreign relations committee. Santiago made the comment while being interviewed by reporters in the Senate lounge.

Senator Santiago, who is also the chairman of the Senate’s legislative oversight committee on the VFA, has a different view on the matter. The senator said Pemberton should be turned over to Philippine authorities and detained in a local facility.

According to the feisty lady Senator, her view on the VFA is that jurisdiction should be with Philippine authorities over a suspect in a crime committed within its territory once he or she has been identified and after a warrant of arrest has been issued.

She also said that the Philippine government has the authority to determine where the person will be detained. She added that normally, any person who has been formally charged in court goes to a city jail.

Senator Santiago is right. A  former regional trial court judge herself, Santiago said Pemberton should be held in a city jail. She also said that Pemberton should be treated like an ordinary person arrested by law enforcers and should not be given preferential treatment if and when he will be detained in a city jail.

The Pemberton case is the second incident involving U.S. personnel since the VFA was signed by United States and the Philippines. In 2005, an American soldier named Daniel Smith, was arrested and charged for allegedly raping a Filipino woman after a night of drinking also in Subic city.

Smith was held at the U.S. Embassy in Manila  throughout the trial. After being convicted and  sentenced to life in prison by a Philippine court, the “custody issue” on the VFA was raised by the U.S. However, the Philippine Supreme Court ruled in 2009 that a convicted American military personnel must serve sentence in Philippine detention and asked the government to negotiate with Washington the transfer of Smith from the U.S. Embassy to the National Bilibid Prison.

While negotiations were going on, the Court of Appeals overturned Smith’s conviction when the victim recanted her previous testimony against Smith.

Several left leaning organizations and women’s rights organizations were dismayed by the decision of the rape victim to recant her testimony. They made her case a rallying point for activists clamoring for the removal of  American  military personnel in the Philippines.

Smith’s alleged rape victim is now here in the United States. How she was able to get a U.S. visa to enter the mainland is anybody’s guess. Everybody knows for a fact that it is really tough for someone to get a travel visa from the U.S. embassy in Manila. By the way, she got her visa, I was told, a few months after she recanted her testimony against Smith.

I hope she is having a good life here America. I hope too that Laude’s family will be able to get justice they deserve for the untimely death of their kin in the hands of Pemberton. But of course, my first wish is to have Pemberton land in a Philippine detention center.

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