Prosecutors slam recall of arrest warrants on Marines

OLONGAPO CITY — Judge Renato Dilag, who is presiding over the controversial Subic rape case, erred when he recalled the arrest warrant he earlier issued against the four American servicemen accused of the crime, government prosecutors said yesterday.

In an omnibus motion filed before Regional Trial Court Branch 73, Olongapo City Prosecutor Prudencio Jalandoni and Prosecutor Raymond Viray said Dilag’s Jan. 26 order, which deferred the court proceedings and recalled the arrest warrant "is not based on law and jurisprudence."

The prosecutors reiterated that the accused servicemen — Lance Corporals Daniel Smith, Dominic Duplantis and Keith Silkwood, and Staff Sergeant Chad Carpentier — should be under the custody of Philippine authorities for them to be considered as having submitted themselves to the jurisdiction of the court.

Dilag had suspended the trial pending a review by the Department of Justice of the prosecution’s resolution to charge the American servicemen with rape, as requested by three of the accused.

The prosecutors asked in the same motion that the court reconsider its previous order or set the arraignment of Smith, who has not filed a motion for review, for "continuous and reverse trial."

According to Jalandoni and Viray, since the US Embassy is considered an extension of the sovereign state it represents, the submission of the accused to its custody "cannot, by any stretch, be deemed as surrender to Philippine authorities."

The US Embassy has refused to hand over the American servicemen, citing provisions in the Visiting Forces Agreement (VFA) that allow American troops charged with crimes while taking part in the exercises to remain in US custody until legal proceedings are completed.

The prosecutors said they do not dispute the constitutionality of the VFA and agree with the court that the treaty is part of the law of the land.

"However, Article 5 of the treaty itself provides for the exercise of criminal jurisdiction by Philippine authorities over US personnel with respect to offenses committed within the Philippines and punishable under the laws of the Philippines," they said.

"Correlating this provision with the principle that the components of criminal jurisdiction consist of jurisdiction over the offense, jurisdiction over the place where the offense is committed, and jurisdiction over the accused which may be obtained by service of warrant against him or upon his voluntary submission, it is clear that this court cannot exercise jurisdiction until it has custody of the accused," the prosecutors added.

Jalandoni and Viray added that while the pleading by the accused servicemen regarding the merits of the case is a recognized form of voluntary appearance, this is premised on the assumption that they are within Philippine territory.

Thus, "since the US Embassy, juridically speaking, is not a Philippine territory, the accused cannot be considered to be within Philippine jurisdiction despite the filing of a petition," they said.

"That being the case, it is humbly submitted that the Honorable Court erred in withdrawing the warrants of arrest against the accused since that is the only way by which jurisdiction over their persons can be acquired," the prosecutors added.