ICYMI: Understanding the VFA after transgender slay
MANILA, Philippines—The Visiting Forces Agreement (VFA) is under scrutiny anew after a Filipino transgender was allegedly killed by a US Marine in Olongapo City over the weekend.
Here are the four important points of Article V, Paragraph 6 of the VFA related to the issue of “Criminal Jurisdiction.”
1. US government will have custody of any US personnel who has committed an offense.
The first sentence of Article V, Paragraph 6 of the VFA states: “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 US Marine suspected of killing Filipino transgender Jeffrey “Jennifer” Laude has been identified by police as Private First Class Joseph Scott Pemberton.
He is being detained on board the US Navy Ship USS Peleliu, along with other potential witnesses, currently docked at the port of Subic, the US Embassy confirmed in a statement Tuesday.
The executive director of the Presidential Commission on the Visiting Forces Agreement (VFA), retired general Eduardo Oban Jr., clarified to reporters Tuesday that the phrase “if they so request” would apply if the suspect was initially under the custody of the Philippine government.
The Philippines cannot deny a request from the US for custody, he said.
2. US government is required to provide access to the suspect for investigation and trial.
The second sentence of Article V, Paragraph 6 of the VFA states: “United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged.”
Oban said Philippine authorities would be given full access to Pemberton “in coordination with American authorities.”
Asked whether Philippine authorities have personally seen Pemberton, Oban said he still needed to check with the police.
Assistant Secretary Charles Jose, DFA spokesman, said that they have no direct involvement in the investigation and would only wait for the official report from the police.
Oban and Jose both noted that the US has been very cooperative so far based on the previous order that no US ships may leave the Philippines until the investigation has been completed.
“The fact that they gave us all the assistance we needed are very good indications. They are one with us in assuring the public that justice will be served,” Oban said.
3. The Philippine government may request to have custody of the suspect “in extraordinary cases.”
The third sentence of Article V, Paragraph 6 of the VFA states: “In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account.”
Jose said that the Philippine government has “strong reasons” to request for custody of the suspect “considering that a person has died.”
“We can try but it’s not guaranteed that they will grant our request,” Jose said.
“If they don’t grant our request, we should not begrudge them because principally it’s in the provisions of the VFA that custody principally resides on their side. We shouldn’t feel bad … if we don’t get it we should keep in mind that we still have criminal jurisdiction,” he said.
Oban said this was an extraordinary case which was sufficient reason for the Philippines to assert jurisdiction over the case and to try to get custody of Pemberton.
4. A verdict must be handed down within one year of judicial proceedings or else the case is over.
The last few sentences of Article V, Paragraph 6 state: “In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one year period will not include the time necessary to appeal.
“Also, the one year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so.”
Oban said that this one year limit included only the main trial period and did not include the appeal.
“If we don’t get a decision within one year, that’s the end of the case,” he said.
If and when Pemberton has been convicted in a Philippine court, Jose said he would serve his term in the Philippines.
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