A matter of courtesy

Deplorable, to say the least, is the US Embassy action returning the warrant of arrest of the five US servicemen accused in the Subic rape case. While the Visiting Forces Agreement (VFA) indeed provides that the US has the right to retain custody of the accused, it does not explicitly say that it can ignore the warrants issued by the Regional Trial Court of Olongapo City where the crime was allegedly committed. This is definitely not within the spirit of the VFA. It is an act of arrogance and utter defiance of a lawful order issued by our own court which has competent jurisdiction over the crime committed.

The principle of comity in International law or courtesy between nations in the recognition of one another’s laws and customs dictates that the US should have acknowledged receipt of the arrest warrants. Then it should have notified the RTC that, without surrendering custody, it is ready and willing to bring the accused and present them before the judge accompanied by any duly authorized embassy official for the proper arraignment or reading of the charges on the date set by the judge. The notice should also request the judge that upon being arraigned, the accused should be released into its continuing custody on the undertaking or guarantee that it will bring the accused back to the RTC as and when their appearance is necessary. Such arrangement is essentially in the nature of releasing the accused into the custody of the US government on recognizance rather than the usual release of the accused into the custody of a bailer or surety under a bail bond. Recognizance in a criminal case is an obligation of record, entered into before some court of record or magistrate duly authorized, with condition to do some particular act like appearing at the criminal court (Black’s Law Dictionary, 1436-36; Albrecht vs. State 132 Md. 150). Under this arrangement, placing the custody of the accused in the hands of the US government can be considered as placing them in the custody of the local court for purposes of effectively acquiring jurisdiction over their persons.

Actually under our rules, appearance of the accused before the criminal court during the trial is necessary only when identification of the perpetrator/s of the crime is to be made; when the accused themselves will have to testify as witnesses to establish their defense; and at the promulgation of the "guilty or not guilty" verdict. On these dates, the US government should deliver the accused to the court. At other stages of the trial, their appearance is a matter of right to a face to face confrontation of the witnesses against them. This right can be waived. Hence the US Embassy can manifest to the RTC through the respective counsel for the accused that they are waiving their right to be present at all times especially on the dates of hearings when their personal appearance is optional on their part.

Should the accused be finally found guilty, they should be transferred to the jurisdiction of the Philippine government for the serving of the sentence. The VFA however provides that the Philippine government may agree that the sentence be served in a USA prison. But in this case the Philippines should not agree considering the gravity of the offense.

This modus operandi is more in keeping with the essence of the VFA or any bilateral agreement that calls for reciprocity of rights and obligations. This is a "perfectly workable system that has effectively operated for years where foreign troops have been serving in another country in any capacity" wrote Peter Gore, a former senior journalist in the UK vacationing somewhere in Luzon in response to my previous article on VFA (Philippine STAR, Mocking the Judicial Process, January 16, 2006).

Unfortunately, the system was not given the chance to work in the Subic rape case when the US government returned the arrest warrants un-served. As it is, the Judge or the Philippine government could only hope and plead that the US would reconsider and refrain from insisting on its right to retain custody without any assurance on record that it will deliver the accused when required by the court. And considering that there is a fixed timetable during which it is responsible for the custody of the accused, the possibility looms large that the victim may not get justice in her own country by virtue of these lamentable developments in the workings of an already lopsided VFA. Under these circumstances, the Philippine Senate is perfectly right to ask for the abrogation and renegotiation of said agreement. Anyway, its counterpart US Senate has not ratified it. So it cannot be faulted for revoking its own approval of the agreement.

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