Palace sees no tug-of-war over Pemberton custody; VFA to apply
Presidential spokesman Edwin Lacierda. INQUIRER FILE PHOTO
MANILA, Philippines – Malacañang expressed confidence Wednesday there would no longer be any tug-of-war between the Philippines and the United States over who would have custody of US Marine Pfc. Joseph Scott Pemberton while he undergoes trial for murder in the killing of transgender woman Jeffrey “Jennifer” Laude following a court order for his arrest.
Malacañang spokesman Edwin Lacierda said at a press briefing that the Supreme Court decision on the case of Daniel Smith should guide the two parties on the issue.
“There is guidance with respect to the provisions on the VFA (Visiting Forces Agreement) by the Supreme Court. So we will allow, we will apply Supreme Court provisions,” Lacierda said. “There is some light as to how we proceed with the case of Mr. Pemberton.”
Lacierda stressed that the judicial process must be followed.
“There was a warrant of arrest that was issued by the court and so, as a matter of procedure, we have to enforce the warrant. We have to formally seek custody of Mr. Pemberton but we have to go through the process within the purview of the Visiting Forces Agreement,” he said.
But getting Philippine custody of Pemberton is apparently still not an easy matter.
The Supreme Court decided on the detention of Smith after he was found guilty of raping a Filipino woman in Olongapo City in 2005.
Pemberton, on the other hand, is still to undergo trial.
Judge Roline Ginez-Jabalde has issued a warrant for his arrest, raising the issue anew of whether it is the Philippines or the US that should have custody over the US serviceman for the duration of his trial.
The 2006 decision of the Supreme Court settled the matter between “custody” and “detention” of a US serviceman accused 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 Kristie Kenney which said Smith was to be detained at the US Embassy.
“Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to detention as against custody,” the high court said.
It said that the “moment the accused has to be detained, e.g., after conviction, the rule that governs” is Sec. 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 Philippines 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 recognized 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 high court said.
“Therefore, the Romulo-Kenney Agreements of December 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, Sec. 6 of the VFA, on the other, states that the US 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.
