Statement of Philippine Foreign Affairs Secretary on the VFA and the killing of Jennifer Laude
Statement of Philippine Foreign Affairs Secretary on the VFA and the killing of Jennifer Laude
STATEMENT OF DFA SECRETARY ALBERT DEL ROSARIO FOR THE HEARING OF SENATE COMMITTEE ON FOREIGN RELATIONS ON ALLEGED KILLING BY US MARINE OF A FILIPINO TRANSGENDER IN OLONGAPO CITY
22 October 2014, 10:00 AM
Committee Room No. 3, 2/F, Senate Building
Your Honor, good morning.
Thank you for the invitation to attend this hearing, and for the opportunity to deliver this statement on behalf of the Department of Foreign Affairs.
May I begin by reiterating the Department of Foreign Affairs’ deepest sympathies to the bereaved relatives and loved ones of Jeffrey “Jennifer” Laude over this tragic incident. May I say to them, that the Department of Foreign Affairs is totally committed to do everything it can to see that justice is served.
There have been many questions as to whether the VFA is actually an instrument which allows us to pursue the ends of justice, or if it is an unfair agreement.
In that regard, we recall that when we hosted US military bases in the Philippines, US servicemen actually serving on those bases enjoyed exemption from our jurisdiction for offenses committed within the bases. This followed the general rule of international law that visiting forces in the territory of another state are actually subject only to their own court martial system, and not to the jurisdiction of the host state, unless otherwise stipulated by agreement.
And so may I emphasize that now, under the VFA, the Philippines unquestionably enjoys the primary right to exercise jurisdiction over offenses committed by US servicemen in the Philippines, save for offenses solely against the security, property or person of the United States government and personnel.
Thus, unlike in previous times when the country was hosting US bases, the Philippines now has the authority to prosecute US servicemen in the Philippines, to try them in the Philippines, and if convicted, to jail them in the Philippines.
And because of this, we are actually now exercising our jurisdiction over this heinous crime allegedly committed by a US serviceman. We have not hesitated to inform the US authorities that the Philippines is exercising its primary jurisdiction over this case, and we are not conceding this right. We fully expect the US therefore to cooperate with the Philippine Government in the pursuit of justice.
Thus, after a little more than a week from the killing of Jeffrey “Jennifer” Laude in Olongapo, the wheels of justice are effectively moving forward. The case has now reached its preliminary stage before the Office of the City Prosecutor in Olongapo City. The first hearing was conducted yesterday, 21 October 2014, where Private 1st Class Joseph Scott Pemberton was represented by counsel before the City Prosecutor. The Prosecutor has assured everyone that the legal process will proceed.Many have called for the abrogation of the VFA due to this incident, and other incidents such as the Subic rape case of 2005. However, it is precisely because the VFA is there that we are actually able to exercise jurisdiction over these servicemen. The constitutionality of the Visiting Forces Agreement has been upheld by the Supreme Court in the cases of Bayan v. Zamora, Lim v. Executive Secretary, and Nicolas v. Romulo.
On the issue of custody over the accused, and following the Supreme Court pronouncement in Nicolas vs. Romulo, we are aware that prior to conviction, the US has the right to retain custody over its servicemen under Article 5, section 6 of the VFA. But such right can be waived, and we affirm that if a warrant of arrest is issued, we will request the US to turn over the serviceman’s custody to us.
The bottom line, Your Honor, is that the US is fully aware that for the Philippine Government, it will be totally unacceptable for them to detain Private 1st Class Pemberton within the premises of the US Embassy, as was done in the Lance Corporal Daniel Smith case.
In fact, as I appear before this august body, I wish to advise everyone, especially the Laude family, that PFC Pemberton, as of 8:45 this morning, has now been transferred from the USS Peleliu to Camp Aguinaldo.
We assure Your Honor that we will keep the public informed of developments in this regard. For now, what must be an imperative is the pursuit of justice for the death of Jeffrey “Jennifer” Laude. We are fully committed to the achievement of this objective.
Thank you very much.
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FREQUENTLY ASKED QUESTIONS ON APPLICATION OF THE VISITING FORCES AGREEMENT IN CURRENT OLONGAPO MURDER CASE
22 October 2014
Q1: The Philippine Government has always insisted that under the VFA, “jurisdiction” is with the Philippines but “custody” over the accused is with the United States. What is the difference between the two? Can one exist without the other?
A1: “Jurisdiction” under the VFA refers to the authority to investigate, prosecute, and detain US servicemen accused of committing a crime in the Philippines. “Custody” refers to the legal hold over the serviceman being charged. The two concepts are not the same and are not incompatible. The investigator or the court of law in the Philippines can continue to investigate and try the serviceman, while his custody is held by the US government, which in turn is compelled to make him available for investigative or judicial proceedings upon formal notification of the Philippine government. This is the essence of Article V, section 6 of the VFA.
Q2: Is this not unconstitutional? Why should this be the case?
A2: The Supreme Court has in fact validated the constitutionality of the VFA in not one but 3 cases: the 2000 case of BAYAN V. ZAMORA; the 2002 case of LIM VS. EXECUTIVE SECRETARY; and the 2009 case of NICOLAS VS. ROMULO.
In the 2009 case of NICOLAS VS. ROMULO, the issues of jurisdiction and custody were in fact tackled by the Supreme Court. In its ruling, the Court stated that the general rule in international law is that foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon by both countries under an agreement. The receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties.
Q3: Why should foreign servicemen be given such special treatment under international and domestic law?
A3: Because precisely by their nature as military forces, they are normally under the control and jurisdiction of their military command. Special rules actually apply in the application of criminal procedure to men in uniform. Even in cases of Philippine military officers, there are different rules on bail and custody which apply to them in the local courts.
Q4: There is the assertion that the DFA is wrong in its interpretation of the custody provision. It is claimed that it is the Philippines which has the primary right of custody and we can refuse any US request for custody. What is your reaction?
A4: The DFA was the lead office which negotiated the agreement for the Philippines with the United States. Of course we are in the best position to interpret the provisions of the agreement. During the negotiations for the VFA in the late 1990’s, it was clear that this was the compromise necessary: the Philippines – unlike in the situation involving the former military bases – would have the authority to investigate and try US servicemen, but in exchange, the US military authorities would have the right of custody over the serviceman until the conclusion of all judicial proceedings.
The first sentence of Article V, section 6 of the VFA precisely states that: “The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.” The word SHALL is the operative word.
Q5: But since the provision states that there is a need for the US to request it, did the US in fact request custody over Pvt 1st Class Joseph Scott Pemberton?
A5: They did not formally request it since Pemberton was in fact already with them, aboard their ship. He had not been arrested in flagrante delicto by Philippine authorities and was not being detained by us. However, in meeting after meeting we have had with US Embassy officials, including the Ambassador of the US, it was made clear that the US was requesting the Philippines to recognize their right of custody over the serviceman, which we were bound to do so under the VFA.
Q6: So why is the Philippines saying that they “will request for his custody” if he is formally charged? Why did the Foreign Secretary say that we could request custody in extraordinary cases?
A7: The VFA likewise states that in extraordinary cases, the Philippines shall present its position on custody to the US government, which shall take it into full account. There is no guarantee that they will grant it. But we can certainly ask them to waive their right of custody over the serviceman. And certainly, a heinous crime applies as an extraordinary case.
Q8: Then why has DFA consistently stated that they will make a formal request for full custody only after a warrant of arrest has been issued?
A8: We must note that, as stated by Justice Secretary De Lima, we are currently in the preliminary investigation stage of the case. As such, Pemberton has not yet been officially charged, and as he was not caught in flagrante delicto, he would have the right under Philippine law to solicit from the courts his immediate release if he were to be detained by us right now. In effect, if we requested full custody now, and the US did not maintain any legal hold on him, he could actually be a free man roaming the streets, or returning to his military commanders, instead of being behind bars. The same rule would apply to any Filipino who is merely the subject of a preliminary investigation. Until he is formally charged, he has the right to his liberty.
Q9: What assurances do we have that under the VFA, the US will not spirit US servicemen being investigated or tried away from the country? Will Pemberton be detained at the US Embassy the way it was with Daniel Smith?
A9: This would be a gross violation of the VFA if the US in fact did not cooperate with Philippine authorities if they helped any accused servicemen leave the country. As for the case of Pemberton, he was originally being kept in the brig of the USS Peleliu. We informed the US that we would not accept any transfer of his person to the US Embassy.
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