DFA won’t appeal US stand

MANILA, Philippines–The Philippines will not appeal the US refusal to grant it custody of a US Marine who is accused of murdering a Filipino transgender woman, the Department of Foreign Affairs (DFA) said on Thursday.

The Department of Justice (DOJ), however, insisted the Philippines should continue fighting for custody of the US Marine and legislators said the government should initiate a review of the Visiting Forces Agreement (VFA) between the Philippines and the United States.

Assistant Secretary Charles Jose, spokesman for the DFA, said it was within the right of the United States to retain custody of Lance Cpl. Joseph Scott Pemberton, who was ordered arrested on Tuesday by a local court on murder charges involving the death of Jeffrey “Jennifer” Laude in Olongapo City on the night of Oct. 11.

With Pemberton ordered arrested, the Philippines, through the DFA, requested the United States to waive custody of the serviceman. The request is provided for in the VFA.

But on Wednesday, the US Embassy in Manila told the DFA that the United States was retaining custody of Pemberton as provided for in the VFA.

Assistant Secretary and DFA spokesman Charles Jose: It’s within the right of the United States to retain custody of Lance Cpl. Joseph Scott Pemberton. AP FILE PHOTO

On Thursday, Justice Secretary Leila de Lima said the government would insist on taking custody of Pemberton.

“I maintain my statement, my position that the Philippine government will ask for and insist on his custody, because there’s already a warrant of arrest,” De Lima told reporters on Thursday.

De Lima said the VFA Commission, the primary Philippine body overseeing the implementation of the agreement, was discussing how to deal with the “impasse.”

She said the Philippines sought custody of Pemberton based on the VFA provision awarding custody to the country in “extraordinary circumstances,” including in cases of heinous crimes such as murder.

Extraordinary circumstances in Laude’s death, she said, include “treachery, cruelty, use of superior strength” and human rights.

“As far as I know, that’s what the VFACom invokes in their talks with the US Embassy,” she said.

De Lima said the two countries were not in agreement on the interpretation of the extraordinary circumstances provision of the VFA.

They have also not drawn up implementation guidelines for the 15-year-old agreement because “there are certain aspects that the two sides could not agree on.”

In a statement issued on Wednesday, the US Embassy said the “VFA states that the United States has the right to retain custody of a suspect from the commission of the alleged offense until completion of all judicial proceedings.”

“The position of the US [to retain custody of Pemberton] actually is not inconsistent with the Visiting Forces Agreement,” Jose said on Thursday.

Jose noted that the DFA had said earlier that there was no guarantee that the United States would grant the Philippine request for custody of Pemberton.

Telling PH what to do

The Inquirer obtained a copy of the two-page diplomatic note of the US Embassy to the DFA that said the United States preferred to “continue with the current detention arrangements on sovereign Philippine territory at Camp Aguinaldo.”

Curiously, the US Embassy requested the DFA to reiterate to all Philippine agencies with jurisdiction over the case that it is the United States that has custody of Pemberton.

“Accordingly, the Embassy of the United States of America requests the assistance of the Department of Foreign Affairs in instructing all relevant agencies, both national and local, of the Government of the Philippines with jurisdiction in the case that custody of Pemberton shall at all times remain with the Government of the United States of America and its designated representatives,” the US government said.

“In particular, the Embassy of the United States of America requests the assistance of the Department of Foreign Affairs in communicating the custody requirements of the Visiting Forces Agreement to the appropriate legal authorities of the Government of the Philippines with jurisdiction in the case of LCpl Pemberton to ensure that any and all legal orders are applicable to LCpl Pemberton properly reflect the custody requirements of the Visiting Forces Agreement and instruct law enforcement officials of the Philippines to act accordingly,” it said.

It was unclear what prompted the United States to make such a specific request to the DFA.

A well-placed government source who had seen the diplomatic note said that “by itself, the language [of the note] is already significant in that it is telling the country what to do.”

Only the President of the Philippines through his alter egos can give instructions to law enforcement agents, said the official, who requested anonymity as he had no clearance to talk about the matter.

Justice for Laude

But the people, he said, should “not lose sight of the bigger picture”—the government objective of getting justice for Laude.

“Our only objective is justice for Jennifer Laude and we think we would be able to attain that objective given the provisions of the [VFA],” he said.

Those provisions include the Philippines getting criminal jurisdiction over US soldiers accused of committing crimes in the country, under which Pemberton is being prosecuted in a local court.

“So that’s more important because if found guilty and convicted, Pemberton will definitely serve time in the Philippines,” Jose said.

That will be the time that the Philippines will have “sole custody” of Pemberton, Jose said, adding that the serviceman is detained in the Philippines as provided under the VFA.

Pemberton, 19, is detained at the Joint US Military Assistance Group (Jusmag) compound at Camp Aguinaldo, headquarters of the Armed Forces of the Philippines, in Quezon City, awaiting trial.

Jose said the Philippines was “taking the word” of the United States that it would abide by its obligations under the VFA by making sure Pemberton would appear in all judicial proceedings.

Asked what would happen should the Olongapo City Regional Trial Court Branch 74, which ordered Pemberton’s arrest, order the Marine held in a local jail, Jose said the VFA would prevail, as the provision on custody was very clear that the United States had “physical and legal custody” of the serviceman.

Jose said there was no possibility that Pemberton would be turned over to the US Embassy because from the very start of the case, the Philippine government made it clear that it would not agree to the serviceman’s being held at the embassy.

He cited a “past experience,” referring to another US Marine, Lance Cpl. Daniel Smith, who was convicted of raping a Filipino woman in 2005 and was held in the US Embassy under an agreement between the two governments.

The Supreme Court voided that agreement but Smith was acquitted by the Court of Appeals after his accuser recanted her statement and he was quickly taken out of the Philippines.

Jose said Pemberton would be detained at Camp Aguinaldo while being tried.

The family of Laude wants Pemberton to be detained at the Olongapo City Jail, where they can always see him, an assurance that he is still in the Philippines.

US Ambassador to the Philippines Philip Goldberg on Thursday defended the US decision to retain custody of Pemberton.

“We are doing it for certain reasons, for certain legal reasons that we have with US servicemen involved and we have the VFA that allows us to do it,” Goldberg said in an interview with ANC. “We are not doing this just for willy-nilly.”

Goldberg said the decision to hold Pemberton in Camp Aguinaldo took into account “Philippine sensibilities and sensitiveness.”

He said the United States was trying to work “as cooperatively as we can” with the Philippines and that it was trying not only to ensure justice was done but also to “protect the rights” of the accused.

Goldberg said he did not agree with the view that the Philippines could not have jurisdiction over Pemberton without having custody of the serviceman.

“That may be a Philippine legal opinion, but it’s not our view of how the VFA works. The VFA is an agreement between our two countries and is part of Philippine law,” he said.

In the justice department, De Lima said she supported calls for clarification of certain VFA provisions, as similar controversies would continue to crop up if those “vague provisions” remained unresolved.

Initiate review

Senate President Franklin Drilon said the executive department should initiate a review of the VFA.

President Aquino and the DFA must send a note to the US Department of State requesting that both parties begin reviewing the agreement, he said.

Drilon, who thinks the US position is a “too technical” interpretation of the VFA, said the agreement’s provisions on detention and custody must be given a second look.

“I am requesting that they change the provisions on detention and custody because these run counter to the Revised Penal Code and our Rules of Procedure,” Drilon said.

Sen. Francis Escudero also thinks a review of the VFA and the Enhanced Defense Cooperation Agreement (Edca) is needed to resolve the “sticky issue” of jurisdiction and custody.

Escudero also said he expected the government not to give up the custody fight easily.

“I expect the government to continue asking for custody, to find ways to convince the US to give custody,” he said.

Escudero said one thing that could be raised by the Philippines was why the United States was covering for Pemberton when the findings of its own Naval Criminal Investigation Service (NCIS) were used as basis for filing murder charges against the serviceman.

He said he believed that after an arrest warrant had been issued for a US soldier accused of committing a crime in the Philippines, custody should be given to Philippine authorities.

Higher interests

Former President Fidel Ramos said higher interests must prevail in the handling of the controversy over custody.

Ramos, who attended the 79th anniversary celebration of the AFP at Camp Aguinaldo on Thursday, said he understood the sentiments of the Laude family, but higher interests must be considered in the light of the bullying of the Philippines by another country, a clear reference to China and its claim to almost the whole South China Sea, including territory within the Philippines’ 370-kilometer exclusive economic zone.

“I’m sorry for the families and I am sorry also for the US side but in this case it must be our higher interests and the higher interests are Philippine interests because we are right on sight, we are in the battlefield and we are the victims of bullying by, I will not mention anymore,” Ramos said.

“On that issue (custody of Pemberton), for all of us, must not be the cause for the damage of Philippine-US relations because there are higher interests,” he said.–With reports from Tarra Quismundo, Nikko Dizon, Leila B. Salaverria and Cynthia D. Balana

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