MANILA -After pledging to cooperate with the Philippines in the prosecution of a US Marine accused of murdering a Filipino transgender woman, the United States on Wednesday decided to play hardball and rejected Manila's demand for the custody of the serviceman and his transfer to a local jail.
The Olongapo City Regional Trial Court (RTC) on Tuesday issued a warrant for the arrest of Pfc. Joseph Scott Pemberton, who was charged with murder on Monday for the killing of Jeffrey "Jennifer" Laude in a motel in the city on the night of Oct. 12.
Pemberton has been detained at the Joint US Military Assistance Group (Jusmag) at Camp Aguinaldo, the Armed Forces of the Philippines' headquarters in Quezon City, since the preliminary investigation of the case began in October.
With Pemberton charged in court, the Department of Foreign Affairs (DFA) demanded that the US government transfer the Marine to Philippine custody while he is undergoing trial.
But the US Embassy in Manila said on Wednesday that it had informed the DFA that the United States would "retain custody of Pemberton as provided by the US-Philippine Visiting Forces Agreement (VFA)."
"The VFA states that the United States has the right to retain custody of a suspect from the commission of the alleged offence until completion of all judicial proceedings," the embassy said in a statement.
It noted that Pemberton was already being held at Camp Aguinaldo, "under guard of US military personnel, with perimeter security provided by the Armed Forces of the Philippines."
"The United States will continue to work closely with the Philippine government to help ensure justice is served and the rights of all persons are protected," the embassy said, adding that Pemberton would be made available "for all appearances required by the Philippine judicial system."
Minutes after the release of the US Embassy statement, the DFA, through spokesperson Charles Jose, issued a statement saying the Philippine government had requested the United States to "waive [its] custody" of Pemberton, as provided by the VFA.
"We are disappointed that the US has chosen to invoke their rights under the VFA to maintain custody of the accused," the DFA said.
It said the Philippines expected the United States to honour its VFA obligations and ensure that Pemberton would appear before local authorities and in court for his trial.
"The US Embassy has reiterated its commitment to ensure that Pemberton complies with the requirement of any investigation or judicial proceedings in accordance with Philippine law," it said.
The DFA said Pemberton would remain detained "in sovereign Philippine territory, and our Armed Forces will actively participate in ensuring that he remains in the agreed detention facility."
"We will continue to make the necessary representations in support of the judicial process. We will also remain vigilant in ensuring that the US continues to remain faithful to their obligations under the VFA, to ensure that justice is obtained," it said.
'Force of law'
In an interview on dzRH radio earlier Wednesday, US Ambassador to the Philippines Philip Goldberg said the "formal and legal custody" of Pemberton remained with the United States.
Goldberg said moving Pemberton to the Olongapo City Jail would violate the VFA between the Philippines and the United States.
Goldberg said the VFA had a "force of law," as it had been upheld as constitutional by the Philippine Supreme Court.
"It is certainly our understanding from the US side that it's in force and it should be followed. And so it's a very serious and solemn obligation by both countries," Goldberg said.
In Malacañang, presidential spokesperson Edwin Lacierda told reporters that judicial process must be followed in deciding the custody of Pemberton.
"[The court has issued a warrant of arrest] and so, as a matter of procedure, we have to enforce the warrant. We have to seek custody of Mr. Pemberton but we have to go through the process within the purview of the Visiting Forces Agreement," Lacierda said.
Supreme Court decision
He said the Supreme Court decision in the case of another US Marine, Lance Cpl. Daniel Smith, who was sentenced in 2006 to 40 years in jail after being found guilty of raping a Filipino woman a year earlier, should guide US and Philippine authorities in deciding who should have custody of Pemberton.
Smith walked free in 2009 after his accuser recanted her statement, prompting the Court of Appeals to acquit him.
Getting Philippine custody in Pemberton's case will not be easy. The Supreme Court decided on the detention of Smith after he had been found guilty, while Pemberton has yet to be tried.
In Smith's case, the Supreme Court settled in 2006 the matter between "custody" and "detention" of a US serviceman found to have committed a crime in the Philippines.
The Supreme Court invalidated an agreement signed by then Foreign Secretary Alberto Romulo and then US Ambassador to the Philippines Kristie Kenney that placed Smith in detention at the US Embassy.
"Applying, however, the provisions of the VFA, the court finds that there is a different treatment when it comes to detention as against custody," the Supreme Court said.
It said that the "moment the accused has to be detained, e.g., after conviction, the rule that governs" is Section 10 of Article V of the VFA, which states:
"The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance."
"It is clear that the parties to the VFA recognised the difference between custody during the trial and detention after conviction, because they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be 'by Philippine authorities,'" the Supreme Court said.
"Therefore, the Romulo-Kenney Agreements of Dec. 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not 'by Philippine authorities,'" the court said.
Article V, Section 6 of the VFA, on the other hand, states that the United States will have custody of its servicemen from the commission of the crime until all judicial proceedings are completed. It also says that the Philippines will have jurisdiction over the accused.
"The situation involved is not one in which the power of this court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply-except to the extent agreed upon-to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces," the court said.
Speaking to reporters on Wednesday, Justice Secretary Leila de Lima said the government should insist on getting custody of Pemberton.
"At my level, as far as I'm concerned, now that Pemberton has been formally indicted for murder and a warrant of arrest was issued [Tuesday], the Philippine government should insist on his custody but within the purview of the Visiting Forces Agreement, and I think that can be justified," De Lima said.
De Lima was referring to the VFA provision that "in extraordinary cases, the Philippine government shall present its position to the US government regarding custody, which the US government shall take into full account."
PH has jurisdiction
Sen. Miriam Defensor-Santiago, an international law expert, insisted that the Philippines has jurisdiction over Pemberton and should determine where he should be held.
Since a Philippine court has ordered the arrest of Pemberton, the Philippine government should decide where the US Marine will be detained, Santiago told reporters.
Santiago said the normal procedure in the Philippines is that a person accused of a crime goes to the city jail, "so [Pemberton] should go there."
"Whatever is the normal procedure for Filipinos should be taken as the normal measure [for foreigners] as well. Otherwise, we will be giving undue discrimination in favour of a foreign national in our own country. We don't want that to happen," she said.
"All the Philippines is asking for is that with respect to what needs to be done with Pemberton should be pursuant to the steps that would be done to a Filipinos in his situation," she added.
Santiago said Pemberton's detention could also be negotiated between the Philippines and the United States, but added that this should be done in good faith.
Waiting for orders
The AFP is waiting for orders from higher authorities to hand Pemberton to the Olongapo court.
Col. Restituto Padilla, spokesman for the AFP, said the military's role was limited to providing custody and security to Pemberton while the US Marine was in detention at Camp Aguinaldo.
"We are not in a position to receive any notice of court because there is an existing agreement between the two governments, in accordance with the provisions of the VFA," Padilla said.