‘Rape case vs GIs could weaken’

OLONGAPO CITY — Charging the driver of the van in which six American soldiers allegedly raped a Filipina with being an accomplice has "considerably weakened" the case against the US servicemen, a source from the Olongapo City prosecutor’s office said yesterday.

The source, who asked not to be named, said a subpoena sent the other day to Timoteo Soriano Jr., who was previously questioned by authorities as a witness to the alleged rape, named him as a respondent in the Nov. 29 preliminary investigation and that "many were taken by surprise by it."

The source said city prosecutor Prudencio Jalandoni "did it on his own."

"Now our problem is how to revert to his status as witness, since he is the strongest witness the prosecutor’s office has," the source said. "Because he is now a suspect, he will defend himself and, as a consequence, the Americans charged with rape, instead of being of help in building up the case."

Co-prosecutor Raymond Viray said he checked with the records of the prosecutor’s office and found that Soriano had indeed been issued a subpoena as one of the suspects in the rape case, along with US soldiers Keith Silkwood, Daniel Smith, Albert Lara, Dominic Duplantis, Corey Burris, and Chad Carpenter.

Viray could not immediately explain why Jalandoni classified Soriano as an accomplice in the rape case, saying he was on sick leave when the change was made.

Viray said that Soriano’s earlier affidavit naming only five and not six of the US marines has remained the only official document for consideration by the government prosecutors.

Soriano earlier told reporters that he was coerced by members of the Subic Bay Metropolitan Authority (SBMA) intelligence police into signing the affidavit implicating the US marines in the alleged gang rape of a 22-year-old Filipino woman in the van he was driving late last Nov. 1 at Subic Freeport.

"Should Soriano not attend the Nov. 29 investigation or be represented by his legal counsel to file counter-affidavit, the prosecutor’s office will take into consideration only the existing affidavit he has executed so far, in the absence of his counter-affidavit, as suspect," Viray said.

Earlier, Jalandoni said he decided to name Soriano as an accomplice due to his "behavior" since the Nov. 1 incident, adding that "it appears from his declaration made to the media that he is attempting to cover up the case."

He also noted that Soriano has gone into hiding and that he "gave contradictory statements that he has not formally recanted."

During the first preliminary investigation of the rape case last Nov. 23, lawyer Francisco Rodrigo Jr., counsel for Carpenter, read aloud transcripts of Vice President Noli de Castro’s interview with Soriano, who claimed he was forced by a certain Pike Torres of the SBMA police to sign his testimony against the Americans.

Viray said that Soriano can still execute an affidavit to clarify what really happened. He also said the prosecutor’s office here is asking whether US authorities are indeed conducting their own investigation into the rape case. "It will help us to know the evidence they will find," he said.

Viray, however, stressed that the outcome of the US investigation will not preempt the probe being conducted by the prosecutor’s office here. "I understand the US investigation is for military discipline only," he said.

During the investigation last Nov. 23, US Embassy spokesman Matthew Lussenhop said "the US is firmly committed to see justice observed and we await the results of both US and Philippine investigations and look forward to a fair and impartial process that can provide for justice."

Viray said that the presence of the six Americans will not be required on Nov. 29, although Lara is expected to be present to confront Soriano.

"This confrontation is for Soriano to declare whether he (Lara) was indeed one of his passengers in the van during the alleged rape incident," he said, adding "the other suspects can also resort to this if they want to."

Viray said that the complainant does not need to be present on Nov. 29 and she could be represented by her lawyers.

He also said the testimony of Ben Natividad Jr., chief of staff of SBMA chairman Feliciano Salonga, was not necessary for the government prosecution. Natividad was identified by Paquito "Pike" Torres of the SBMA police investigation unit as the one who provided the complete names of the six Americans through a cell phone text message.

"There are other witnesses who can help identify the Americans involved," Viray said.

Natividad was reported to have seen the suspects with their nameplates after they were asked by the US military officials to disembark from their vessel, the USS Essex. The suspects were participants in the recently concluded joint military exercises held under the Visiting Forces Agreement (VFA) signed by the US and Philippine governments.

‘VFA revision tied to US counter-terrorism’

Meanwhile, Sen. Miriam Defensor-Santiago, co-chairwoman of the legislative oversight committee on the VFA, said the US-led war against terror will likely pave the way for the VFA to be amended.

"The recent Asia-Pacific Economic Cooperation (APEC) summit meeting in South Korea led to a consensus that the US and other Western countries will sign VFAs with Southeast Asian countries, as part of a regional counterterrorism campaign. This implies that there will be a model VFA that will serve as a template for all countries, including the Philippines," she said in a statement.

Santiago, an expert on international law, said the Philippines will press for a template, or model VFA, that will be closer to the Status of Forces Agreement (SOFA) signed by the US with its allies in NATO or the North Atlantic Treaty Organization and with Japan, particularly Article 7.

She said the VFA should be called a SOFA, and should contain at least two amendments concerning jurisdiction and custody. The first amendment should state that the Philippines is not required to waive primary jurisdiction, but will only give "sympathetic consideration" to any US request for waiver of jurisdiction.

The second amendment, according to Santiago, should state that if a US serviceman accused of a crime is in the custody of the Philippine government, he shall remain in the Philippines.

"These provisions are already contained in the NATO SOFA and the Japan SOFA, and we are merely asking for equal treatment," Santiago said, noting that Japanese police are required to notify US authorities immediately if any US servicemen are in their custody, but are not required to transfer custody.

She said the August 2002 US Service Members Protection Act, which prohibits US cooperation with the International Criminal Court, has been severely attacked by human rights groups.

"The age is over when the US can hope to have immunity from jurisdiction and custody in other countries. The US is not entitled to extensive rights and privileges in the Philippines, just because we have a different culture and judicial system. The VFA is a very sensitive issue here," Santiago said.

She said the VFA was clearly written to favor the US and failed to incorporate a set of implementing rules and regulations.

Santiago said the Department of Foreign Affairs and the Department of Justice (DOJ) have promised to study the possibility of proposing to the US Embassy a "protocol" or a supplement to the VFA that provides the procedure on how each provision should actually be implemented on the ground.

Santiago, a former Quezon City regional trial court judge, said the rape case against the six US Marines undergoing preliminary investigation in Olongapo gives adequate protection to the accused, who are "entitled to military legal advisers, trial observers, and are represented by an entire battery of defense attorneys."

She said the US Embassy, which has custody of the suspects, should observe an international hold procedure so they could not be transferred to locations outside the Philippines.

Regarding reports that the alleged rape victim intends to recant her testimony, Santiago recommended that the complainant be charged with perjury if these reports are true.

Santiago said she received this piece of information from Justice Secretary Raul Gonzalez during a meeting yesterday.

"It appears that there might have been steps taken by the woman involved to file a supplemental affidavit where she wishes to remove or to excise certain parts of her original affidavit referring to the elements that need to be established in order that a crime of rape can be proved in court," she said.

Santiago said Gonzalez received the report from a female lawyer who "represents herself as counsel for the private complainant," though Katrina Legarda, one of the alleged victim’s lawyers, has since denied the report.

Santiago also said the DOJ will ask the Supreme Court to issue a circular to the judge who will handle the rape case to conduct hearings every day until the case is concluded. She said the case would be resolved in less than four months or 120 days.

Under the VFA, a case should be resolved within 100 days or else the Philippines would lose its right to compel the accused to appear before any court proceedings. — With Marvin Sy