US won’t waive custody

Phl disappointed but vows vigilance  

MANILA, Philippines - The United States is not waiving its “formal legal custody” – with “Philippine content” – of accused murderer Marine Corporal Joseph Scott Pemberton, who has been ordered arrested for the killing of transgender Jeffrey “Jennifer” Laude last October.

US Ambassador Philip Goldberg made this clear in a radio interview yesterday even as an Olongapo City judge who ordered Pemberton’s arrest demanded that the 19-year-old Marine be presented to the court within 10 days.

Goldberg said the US stand on retaining custody of Pemberton was in accordance with the provisions of the Visiting Forces Agreement (VFA) between his country and the Philippines.

In reaction, the Department of Foreign Affairs said it was disappointed with Goldberg’s invoking the VFA to justify US custody of Pemberton. But the DFA vowed to continue pressing the US to remain faithful to its obligations under the VFA – including ensuring justice for victims of infractions committed by US personnel.

“The VFA does not allow it,” Goldberg said, referring to Philippine custody. “The VFA is the governing doctrine that was signed between our two countries, and it requires that if we assert that custody will remain with us, then it will be done that way.”

“So the VFA is the controlling, governing document on this particular issue. And let me add one thing – the VFA is at this point part of the rule of law,” he said.

He stressed that the VFA was ratified by the Philippine Senate and determined constitutional by the Supreme Court, making it part of the legal system.

“This is part of the rule of law and it is something that the Philippines and we have decided would be part of this process should something like this particular case occur,” he pointed out.

“It certainly is our understanding from the US side that it is in force and it should be followed. And so it is a very serious and solemn obligation by both countries,” he said.

It was the position the US embassy relayed yesterday to the DFA in response to Manila’s official request for custody of Pemberton.

“The VFA states that the United States has the right to retain custody of a suspect from the commission of the alleged offense until completion of all judicial proceedings,” the embassy said in a statement.

While Pemberton is being held at Camp Aguinaldo, he is directly guarded by US soldiers while Filipino soldiers provide perimeter security.

“The United States will continue to work closely with the Philippine government to help ensure justice is served and the rights of all persons are protected.  This includes making the suspect available for all appearances required by the Philippine judicial system,” the embassy said.

The ambassador said the US is obliged to make sure that the accused appears before the court for all judicial proceedings. The trial process has to be concluded within a year according to the VFA, otherwise the accused would be freed.

He explained that the Pemberton case is handled in a different way.

“Again people need to understand that the reason this is handled in a different way is that there is a US service member involved and we have certain obligations under US law and the US code of military justice,” Goldberg said.

“This is not just for us an American citizen. It goes beyond certain legal obligations that we have to a service member, that is why we negotiated the Visiting Forces Agreement. That’s what we do with otter countries around the world because the United States is present around the world and yes, they are a little bit different in different countries according to the circumstances and the nature of the US presence,” he added.

Goldberg reiterated that the VFA should not be abrogated, citing its role as vehicle through which the Philippines and the US could effectively carry out very important defense cooperation.

“I understand there is a political debate here on many aspects of this and people are entitled to their views but we do not certainly think that that (abrogation) should happen,” he said.

Court order

It was not clear yet how Goldberg’s pronouncement would affect Olongapo City Judge Roline Ginez-Jabalde’s order that Pemberton be presented to the court within 10 days and turned over to Philippine authorities.

On Tuesday, Jabalde issued a warrant for the arrest of the Marine.

Olongapo City police chief Senior Superintendent Pedrito delos Reyes said they are now preparing for the possible arrival of Pemberton in the city.

“We are making preparations, including for possible protest rallies by some groups when he comes here,” Delos Reyes said.

Olongapo City Jail Warden Jerome Verbo, for his part, admitted the city’s jail is congested. “But we are ready in case the US Marine will be transferred here,” he said.

“He will just have to mingle with some 40 other inmates in a cell,” he added. He said there are currently 700 inmates in the city jail designed to hold 300.

He said they are used to handling foreign inmates like Australians and Koreans, and Pemberton would be no different.

Pemberton allegedly killed Laude in their rented room at Celzone Lodge shortly before midnight on Oct. 11. The two met and had some drinks at the nearby Ambyanz Night Life Bar on Magsaysay Drive in Olongapo City on the same night before the alleged murder.

Copies of the arrest warrant were sent to the DFA, PNP, AFP and the National Bureau of Investigation (NBI). It was the DFA which served the warrant of arrest on Pemberton through the US embassy.

The PNP said it is ready to serve the arrest warrant but would rather wait for go signal from the DFA, police spokesperson Chief Superintendent Wilben Mayor said.

“Whatever procedure is agreed upon, the PNP will just comply with the instructions of the higher ups,” he said.

Mayor said Pemberton’s case is “different” from other cases of individuals with arrest warrants.

“This kind of situation calls for decisions from the higher-ups, the PNP leadership in coordination with the DFA,” he said. “We will wait for whatever procedure is agreed upon between the two governments.”

Earlier yesterday, Justice Secretary Leila de Lima said they were actually negotiating with the US for the turnover of Pemberton to local authorities.

“The VFA Commission and the DFA are already working on it by talking to the US embassy and our counterparts,” she said.

De Lima explained that while Goldberg was correct, there are provisions in the VFA that provide for an exemption.

“There is a separate provision in the VFA that for extraordinary circumstance, the Philippine government may insist on custody. To me, the murder case where a fellow Filipino was allegedly subjected to treachery and cruelty should suffice as qualifying circumstance,” she stressed.

De Lima, a member of the VFA Commission, pointed out that Pemberton would have to be transferred to the custody of local authorities after indictment.

“As far as I am concerned, now that Pemberton is formally indicted for murder and a warrant of arrest was issued yesterday (Wednesday), the Philippine government should insist on his custody but within the purview of the VFA,” she explained.

“I think that (transfer) can be justified within the purview of the VFA. That’s my position at my level,” she added.

SC precedent

At Malacañang, presidential spokesman Edwin Lacierda said a February 2009 Supreme Court ruling should serve as basis for the serving of arrest warrant on Pemberton and for turning him over to local authorities.

“We already are guided by Supreme Court decisions on the matter. Remember, the Daniel Smith case was elevated before the Supreme Court, so there is guidance with respect to the provisions on the VFA by the Supreme Court,” Lacierda said in a press briefing yesterday, referring to the SC ruling that convicted rapist Lance Corporal Daniel Smith would have to be placed under the custody of Philippine authorities.

Voting 9-4 with two inhibitions, the SC ruled that that the agreements between then Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney allowing Smith’s detention at the US embassy was not in accordance with the VFA.

“So we will allow, we will apply Supreme Court provisions… There is guidance already from the Supreme Court before, prior to that, so at least there is some… light as to how we proceed with the case of Mr. Pemberton,” Lacierda said.

Smith, a participant in the 2005 joint Philippine-US Balikatan exercises, was convicted by the Makati regional trial court of raping a Filipina inside the Subic Bay Freeport on Nov. 1, 2005.

On Dec. 29, 2006, while the case was on appeal at the Court of Appeals, Smith was transferred from the Makati City Jail to the US embassy on the basis of an executive agreement signed days earlier between Romulo and Kenney.

Despite the custody issue, Lacierda said he was confident of continued US cooperation.

“On the very first instance, we asked for their cooperation. They provided us cooperation by allowing Mr. Pemberton to be placed inside the premises of Camp Aguinaldo. But remember, there’s a custody issue here within the Visiting Forces Agreement – that we have to follow the purview of the VFA – or the provisions of VFA,” Lacierda said.

But Pemberton is considered technically still within US territory in a 20-foot shipping container located at the Mutual Defense Board-Security Engagement Board facility at Camp Aguinaldo.

“They never turned over custody to us,” Lacierda said.

Lacierda added other details like Sen. Miriam Defensor-Santiago’s proposal to have Pemberton put in a regular jail could be part of the coordination process.

“Remember, the US government agreed to allow Mr. Pemberton to stay in Camp Aguinaldo. They extended cooperation on that point. We certainly would hope full cooperation with the US embassy with respect to this point. But we have to go through the process of the VFA provisions,” Lacierda said.

No special treatment

Santiago, meanwhile, reiterated her position that the Philippines should follow its laws and have Pemberton placed in a regular jail.

“Our view of the VFA is that after the warrant of arrest has been issued, the jurisdiction pertains to the Philippine authorities and therefore, it is the Philippine government that will determine where that person must be detained,” Santiago said.

“As we know, normally any person who has been formally accused in court goes to city jail. So he should go there,” she said.

“Whatever is normal procedure for the Filipinos should be taken as the normal measure as well, otherwise we will be giving undue discrimination in favor of a foreign national to our own country,” Santiago added.

“We don’t want that to happen. So all the Philippines is asking for is that with respect to what needs to be done with Pemberton should be pursuant to the steps that would be done with a Filipino in his situation,” she said.

Meanwhile, militant group Bagong Alyansang Makabayan (Bayan) lashed out at the US embassy for insisting on retaining custody of Pemberton.

“In light of the US government’s continuing refusal to surrender Pemberton despite a standing warrant of arrest and a formal request by the DFA, the Aquino government must terminate the VFA,” said Bayan secretary-general Renato Reyes.

“Pemberton is still in US custody and we demand that he be immediately handed over. Goldberg’s insistence that he is under the joint cooperation of US and Philippine authorities under the VFA is just a cover for Pemberton’s defense and a travesty of Philippine sovereignty,” Elmer Labog, chair of the International League of People’s Struggle and Kilusang Mayo Uno (KMU), said in a statement.

“The Pemberton case exposes that the VFA has nothing mutual for Filipinos and Americans. The brutal killing of Laude demands justice. The VFA and so-called mutual defense agreements should be abrogated if we are to strive for peace and justice,” he added. – With Edu Punay, Aurea Calica, Bebot Sison Jr., Christina Mendez, Rhodina Villanueva, Mayen Jaymalin, Cecille Suerte Felipe, Jaime Laude