Phl bows to US on Pemberton custody

MANILA, Philippines - The Philippines has bowed to the United States’ insistence that local authorities cannot take custody of US Marine Cpl. Joseph Scott Pemberton, despite his being ordered arrested by an Olongapo City court for the death of Filipino transgender Jeffrey “Jennifer” Laude in October.

The Department of Foreign Affairs (DFA) said yesterday it was no longer pushing for Philippine custody of Pemberton as the US justification for refusing to turn him over to local authorities was “not inconsistent” with the provisions of the Visiting Forces Agreement (VFA).

“We will not request anymore. We will just wait for the court to advise us when the trial starts and where we expect Pemberton to appear,” Foreign Affairs spokesman Charles Jose said in a press briefing.

“That is not inconsistent with the agreement. They have the right to take that position,” he said, adding “what is important is that in the first place, Pemberton has submitted himself.”

He stressed the Philippines has “criminal jurisdiction” over the American soldier and “he will be tried in Philippine court under Philippine laws.” 

The State Department said yesterday the “US is retaining the suspect until completion of all judicial proceedings” in accordance with the VFA.

State Department spokesperson Jen Psaki said they “will continue to cooperate with the government of the Philippines” in ensuring justice for Laude.
The Olongapo City police confirmed that Pemberton would make a court appearance today.

US Ambassador Philip Goldberg, for his part, said they have “sensible reasons” to retain custody of Pemberton.

“We are working closely with the Philippines on the trial, on the investigation, we have performed as we are required to do under the VFA at every point along the way and we will continue to do that. I think people should know that we are doing this for certain reasons,” Goldberg said in an interview with ANC TV.

He also rejected an appeal from the family of Laude that they be given a copy of the report of the US Naval Criminal Investigative Service (NCIS) on the killing of the transgender.

“No. We deal with the government. The VFA is very clear on the fact that we have a government-to-government relationship on many aspects of the case,” Goldberg said. “There is no direct relationship with the family on this kind of issues.”

US obligation

The DFA said the US is obliged under the VFA to make sure that its servicemen involved in infractions are present in all judicial proceedings.

“We will continue to cooperate with the government of the Philippines to ensure that justice is served,” Psaki said in a statement.

Psaki also emphasized the US would handle situations involving service members in accordance with the VFA. 

The US formally made its position known to the DFA on Wednesday.

“It is not inconsistent with treaty that they retain custody while we have criminal jurisdiction. Like I said, we should not lose sight of the bigger picture, which is to get justice and with the criminal jurisdiction with us we would be able to try Pemberton in a Philippine court under Philippine law,” Jose said.

“So that is more important because if found guilty and convicted, Pemberton will definitely serve time in the Philippines.”

If convicted, Pemberton would serve his sentence in a detention facility to be agreed upon by the Philippines and the US.

The DFA said the US has been fully cooperating right from the beginning when US Pacific Command Admiral Samuel Locklear stopped the departure of US military vessels from Subic until the investigation into the killing of Laude was completed.

Initially, Pemberton was held on the amphibious assault vessel USS Peleliu.

He is now detained in a refurbished shipping container at the Joint US Military Advisory Group compound at Camp Aguinaldo.

Guidelines needed

Justice Secretary Leila de Lima also said there is no way the Philippines can compel the US to give up custody of Pemberton unless the latter is convicted.

But she stressed the Philippines can always press its case, considering that the one involving Pemberton was an “extraordinary” one.

“We can only compel (the US government) for certain upon conviction because we will have to jail him. But at this stage, there are certain provisions that are subject to varying, differing interpretations,” she stressed.

She said it was the lack of implementing guidelines that had bred differing interpretations of provisions in the VFA on custody of American soldiers facing criminal cases in the Philippines.

“I already said it before: one of the problems is that until now, the implementing guidelines were not yet completed after about two to three years in the making. There are certain aspects that both camps could not agree on,” she pointed out.

She said some of the provisions in the VFA are “vague” and “prone or susceptible to varying or differing interpretations.”

“That is why every time there is this kind of case, it’s inevitable that such problems would recur. There are really vague provisions of the VFA,” she stressed.

She said this was the reason why she was supporting the call of Senate President Franklin Drilon for the government to revisit provisions of the VFA on custody and detention.

On the need for the Philippines to continue pushing for Pemberton’s custody, De Lima said Article V Paragraph 6 of the VFA “states 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 told The STAR.

In Olongapo City, Laude family lawyer Harry Roque asked Judge Roline Ginez-Jabalde – through an urgent motion – to revise the arrest warrant she issued last Tuesday by not giving the task of serving such warrant to the DFA.

The warrant was addressed to “any officer of the law through the Department of Foreign Affairs (DFA).” Roque said the DFA would certainly experience “serious difficulties” in serving the warrant since it is not a law enforcement agency. He said the warrant should be addressed to “any officer of the law and the Department of Foreign Affairs (DFA).”

If his motion is granted, Roque said the Armed Forces or the Philippine National Police would be empowered to serve the warrant on Pemberton, “especially since he is already in a military camp.” 

“He should be transferred to the jail like an ordinary accused. The DOJ and DFA share my interpretation of the VFA that the Philippines may insist on custody after issuance of warrant of arrest,” he said.

Disappointed

Senate President Franklin Drilon aired his disappointment over the refusal of the US to relinquish custody of Pemberton on technical grounds.

“What the family of our slain compatriot in Olongapo City want is for their request be considered. That is why I am saddened by this development,” Drilon said in Filipino.

Drilon reiterated his call on the DFA to initiate a review and renegotiation of the VFA.

He explained that the Senate cannot do anything with regard to renegotiation of the VFA since its only role as far as treaties are concerned is to concur to ratification of treaties.

“I suppose this is the time that the Department of Foreign Affairs takes the initiative to propose the review of the Visiting Forces Agreement,” Drilon said.

He said that this could be done through the issuance of a simple notice by the DFA to the US State Department requesting that the two sides initiate a review of the VFA.

Once a review is initiated, Drilon said the issue of custody and detention must be clearly defined and made consistent with the provisions of the Revised Penal Code and the Rules of Procedure. – With Marvin Sy, Edu Punay, Mayen Jaymalin, Jaime Laude, Christina Mendez