Mocking our judicial processes

Judge Renato Dilag of the Olongapo City Regional Trial Court (RTC) deserves commendation for his decisive moves in the Subic rape case. So far he has been acting according to the books. A reasonable ground has been established to believe that a crime of gang rape has been committed within the jurisdiction of the RTC over which he presides and that the four US servicemen are probably guilty thereof and should be held for trial. But to enable the RTC to try the case and render judgment of guilt or innocence, it must have jurisdiction not only over the offense but over the persons accused of committing it. To have jurisdiction over the persons of the accused servicemen means that they have to be arrested. Arrest is taking them into custody in order that they may be forthcoming to answer for the commission of the offense. Without such custody, the RTC has no jurisdiction yet to proceed with the trial of the accused. Hence Judge Dilag is correct in ordering the NBI "to arrest Smith, Carpentier, Duplantis and Silkwood, all of whom are US servicemen and are reported under the custody of the US Embassy, Manila and bring them forthwith before me to be dealt with according to law".

Despite the majestic wordings of his order, Judge Dilag knows that its implementation is not that easy. The order itself recognizes that the accused are US servicemen and they are under the custody of the US Embassy. If they are confined in the US Embassy they are outside the territorial jurisdiction of the court or for that matter outside Philippine territory because the US embassy is considered a US territory. So the arrest warrant cannot be served or enforced in the US Embassy because it is outside the Philippine territory. Under ordinary circumstances, the Philippines should ask for the extradition of Americans who have committed offenses here but found in US territory. The situation is much like the case of MJ Jimenez who was accused and convicted of election fraud in the US but could not be arrested because he was here. So the US still had to ask for his extradition pursuant to an extradition treaty between the US and the Philippines.

The bigger obstacle in the Subic rape case is that the accused are not just ordinary American citizens but US servicemen who came here under the Visiting Forces Agreement (VFA). This VFA allows the US to retain custody of the accused servicemen until the end of the judicial proceedings. The judicial proceedings in this case have already started with the filing of the Information for rape in the RTC. The next step is the trial of the case which will start once the RTC acquires jurisdiction over the persons of the accused through their arrests. The warrants of arrest however could not be served because the US retains custody of the accused in its territory. So if the US will not give up custody, the trial cannot start. If the trial cannot start the judicial proceedings cannot be ended. How then can the US retain custody until the end of the judicial proceedings? This VFA provision is blatantly incongruous and absolutely absurd. More absurd and distressing is the sad reality that under this VFA, the warrant of arrest issued by our court of justice to redress the wrong done to a Filipina could only be enforced through pakiusap. No less than our own Secretary of Justice Raul Gonzalez lamely admits that the "arrest warrants do not guarantee that the Philippine government could automatically take custody of the four US servicemen" This request has been made since November last year and so far there is no word yet from the US government. Yet when the US asked for the extradition of MJ Jimenez, the entire Philippine government machinery from the executive to the judiciary frantically worked overtime to accommodate the request.

Worse still is that aside from leaving the matter of when to end the judicial proceedings entirely dependent on the US, the VFA further provides even more lopsidedly that the US will cease to have any responsibility for the custody of the accused if the judicial proceeding is not terminated within a period of one year. This period of one year has already started and the clock is ticking non-stop. In the meantime we can only hope that the US will grant our request to turn over the custody of the accused. Knowing quite well how slow the wheels of justice grinds in this country, the US might just take its own sweet time before suddenly becoming magnanimous by giving in to our request. By that time, the RTC may no longer be able to beat the deadline of one year or it may have already elapsed. Hence the US will have no more responsibility if the accused are allowed to go back to their country. These are some of the possible scenarios under the VFA which seem to be taking shape right now. Our "sovereign" government should never allow this ultimate mockery of our judicial processes.

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