Fragile sovereignty

The Philippines is supposed to be a sovereign nation with exclusive jurisdiction over its territory. This jurisdiction is exercised by the Filipino people on whom sovereignty resides, through their government which “makes and carries out those rules of action necessary to enable men to live in a social state, or imposed upon the people forming that society by those who possess the power or authority of prescribing them.”  And comprising the national territory is the “Philippine archipelago with all the islands and waters embraced therein” (Sections 1 of Articles I and II, Constitution).

Based on these constitutional precepts, there is no doubt that our government, especially our judiciary, has exclusive jurisdiction to try and decide cases involving crimes committed within its territory by any person, citizen or alien alike, pursuant to its own rules promulgated for such purpose. These are among the functions of government as held in the 1956 case of Bacani vs. Nacoco, (100 Phil. 468).

Applying these basic principles of our fundamental law, the warrant issued by Judge Roline Ginez-Jabalde of Olongapo City for the arrest of US Marine Joseph Scott Pemberton accused of murdering a Filipina transgender and his appearance before the court within 10 days, should be fully and absolutely carried out and implemented in the authentic exercise of our sovereignty. The court of Olongapo City where the alleged crime was committed has the sole power to determine where Pemberton should be detained.

The Visiting Forces Agreement (VFA) entered into between the US and our government particularly concerning crimes committed by US servicemen within the Philippine territory cannot be invoked at this stage to interfere with the processes of our courts. Pemberton must first be arrested and presented before the court. Only when Pemberton has been arrested and presented before the court can the US government appear and inform the court that it is not waiving its “formal legal custody” of Pemberton. But it must nevertheless give adequate reasons for its non-waiver of custody over Pemberton.

This Pemberton case once more focuses our attention on the VFA and some of its provisions which appears to be one-sided in favor of the US particularly regarding US retention of custody over US servicemen committing crimes here. Apparently this provision is in derogation of our sovereignty as a nation particularly regarding our court’s exclusive jurisdiction within our territory. This jurisdiction refers not only to the subject or the crime committed but to the person allegedly committing the crime. And the only way our courts can acquire jurisdiction of the person is to have custody of the accused. This VFA provision is a waiver of our jurisdiction over the person of the accused.

Of course there is also a separate provision in the VFA that under extraordinary circumstances our government can insist on the custody of the accused like this murder of the Filipina with treachery and extreme cruelty.

The US would not have invoked the VFA provision on non-waiver of Pemberton’s custody and our government perhaps would be in a better position to insist that he be detained in our jails if our detention centers are maintained and operated efficiently and properly by the officials in charge of our prisons. Coincidentally but fortunately perhaps, as the issue of Pemberton’s custody unfolds the mismanagement of our national penitentiary is also being exposed. The common denominator here is obviously the kind of penitentiary we have and the officials in charge of it.

Of course it is already of common knowledge that most of our jails in the provinces and cities are not only too congested but also equipped with facilities degrading to human dignity and with inadequate food provisions which are also unfit for human consumption. The congestion here is even aggravated by the detention of people accused of petty crimes who just cannot afford to post bail while the trial of their cases travels at a snail’s pace. Obviously, the inhuman conditions in our jails are due to government neglect or ineptness of our officials.

Worse, however, are the appalling and disgusting practices and activities of convicted drug lords and other “influential” convicts of high crimes inside their cells and under the very noses of the Prison officials. They were recently discovered by the National Bureau of Investigation (NBI) in a surprise raid at the New Bilibid Prisons, our national penitentiary.  Prohibited drugs used in the crime and millions of cash which are the fruits of their crime were also discovered there enabling these convicts to apparently continue operating and perpetrating their criminal acts even while already serving sentence. Indeed even their cells have been equipped with modern high tech equipments and facilities similar to the amenities found in a first class, five star hotel rooms.

With these discoveries there should have already been a top to bottom purge of the officials in the Bureau of Corrections (BUCOR) especially in the New Bilibid Prisons. Or, as usually practiced in other countries, the top officials of the BUCOR should have immediately resigned under the principle of command responsibility. But in this case, it seems that the Department of Justice (DOJ) continues to drag its feet. No heads have so far rolled and the DOJ Secretary has even “reserved her judgment” on the BUCOR Chief allegedly because he does not know what has been happening in the very place under his responsibility. People cannot really help conclude that these illegal operations would not have been possible without any valuable consideration especially with the millions of cash found inside the “hotel-like” rooms of the convicts.          

It is no wonder therefore, that the US would not waive its custody of Pemberton. As US Ambassador Goldberg said “people need to understand that the reason this (Pemberton case) is handled in a different way is that there is a US service member involved here and we have certain obligations under the US law and the US code of military justice.” Obviously the ambassador here is referring to the human rights of an individual that will be endangered inside our jails with the conditions inside our prisons and the kind of officials running them

And obviously this is also the reason why our government signed the VFA proving that our sovereignty is fragile indeed. 

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