"All of them agree that non-service of the warrants of arrest should not derail the trial of the case. The counsel for the accused suggested that (the servicemen) can be arraigned and they will be present whenever they are required by the court," Dilag, who is presiding over the trial of the US servicemen, told The STAR.
The US Embassy has refused to hand over Lance Corporals Daniel Smith, Keith Silkwood, Dominic Duplantis and Staff Sergeant Chad Carpentier, citing provisions in the Visiting Forces Agreement (VFA) that allow American troops charged with crimes while in the Philippines to remain in US custody until legal proceedings are completed.
Local prosecutors have insisted that because arrest warrants have been issued, the four should be held in a Philippine jail despite the VFA.
But a lawyer for the accused told the court that "the VFA should be considered as a special law that must prevail upon general laws like local court rules" and warned that the warrants could lead to a violation of a bilateral accord between the Philippines and the US.
Dilag has said both government prosecutors and defense lawyers have agreed on the issue of the custody of the American servicemen.
"All are in agreement that custody is when the accused is arrested by virtue of a warrant of arrest or when he is arrested by virtue of a warrantless arrest, or when there is voluntary submission to the proper authority," he said.
Dilag added that the third definition agrees with the VFA, an accord the Supreme Court deemed as constitutional in 2000.
Chief State Prosecutor Jovencito Zuño earlier told Dilag that the arrest warrant of the accused Americans was not served and returned the document to Dilag "for the reason stated on the note verbale from the (US) embassy dated Jan. 16."
Dilag also told The STAR that the various motions filed by the accused servicemen will be resolved within one week.
"We have already discussed all the motions filed by the accused through their respective counsels, and apparently they are satisfied that they have already discussed substantially all their respective positions in their motion for reconsideration. So that is deemed official already," he said.
However, Dilag said the court "is under no obligation" to consider the motion filed by the City Prosecutor’s Office for the reconsideration of his order clearing Timoteo Soriano Jr. of the rape charge.
Prosecutors alleged that Smith raped a 22-year-old Filipino woman on Nov. 1 inside a van driven by Soriano at Subic Freeport as fellow Marines cheered him on. Smith claims he only had consensual sex.
Dilag said prosecutors violated at least two rules when it filed the motion yesterday, set it for hearing today, and addressed it to the clerk of court. He pointed out that the motion should have been set for hearing at least three days before and addressed to the accused or his counsel.
He added that the Supreme Court, "in the long line of decisions, maintains that notice to the clerk of court is no notice at all."
"That makes the motion a mere scrap of paper. The court is under no obligation to consider that motion," Dilag said.
The motion filed by defense lawyers to quash the arrest warrants "is another issue we have to look into," he said. "Give me four to five days to rule on this motion."
Dilag also said it would take a maximum of 50 days before the Department of Justice can resolve a petition for review of the case filed before it by defense lawyers.
Meanwhile, prosecutors maintained that Dilag was competent to try the Subic rape case, despite a motion filed by defense lawyers calling on Dilag to inhibit himself from trying the case.
"We don’t see any color of partiality in (Dilag’s) press statements alluded to by the counsel of the accused, but we see these pronouncements as judicial authority rightfully asserted," prosecutor Peter Parco said, adding that they will not join defense lawyers in asking Dilag to inhibit himself.
In North Cotabato, Gov. Emmanuel Piñol threatened to pull US soldiers out of the ongoing RP-US Balikatan joint exercises in this province if the US government continues to refuse to hand over the four servicemen charged with rape.
"So far, the Americans have not given any justification why they still refuse to hand over the four accused US servicemen. They should put them under our existing laws," Piñol said.
At least 32 US soldiers are participating in the exercises, which will run until Feb. 17, inside Camp Lucero in Carmen with their local counterparts as part of the Balance Piston 06-02 of the Joint Command Exercise for Training Program under the Mutual Defense Board.
"The Subic case is not a simple rape case. It involves our dignity as a country and as a people. It is an insult if these US servicemen will not be turned over to our authorities. It affects our pride as a nation," Piñol stressed.
He plans to raise the issue during the Provincial Peace and Order Council meeting slated on Monday. Hopefully, he said, the PPOC would come up with a resolution on the issue.
The US soldiers "better start packing their things up and look for other venues for the joint war games," he said.
Piñol said members of the provincial board will also discuss his proposal when they meet next week.
In a talk before delegates to the Association of Southeast Asian Nations (ASEAN) Tourism Conference here Wednesday, Davao City Mayor Rodrigo Duterte also called for the pullout of American soldiers from any joint military exercises in other parts of Mindanao.
"The Americans are not the answer to the long history of conflict in Mindanao which could only be solved by those in the island themselves," Duterte said. — With Edith Regalado, AFP