Laudes ask court to review ruling on Pemberton jail transfer, media coverage

By: Tetch Torres-Tupas - 10 years ago

Joseph Scott Pemberton. Photo from Olongapo City Police

MANILA, Philippines–The family of slain Filipino transgender Jeffrey “Jennifer” Laude asked the Olongapo City Regional Trial Court to reconsider its December 23 ruling dismissing their bid for the transfer of accused US Marine Lance Corporal Joseph Scott Pemberton to regular jail.

In the motion for reconsideration, Marilou Laude, sister of the victim, also asked the Olongapo court to open the trial to the media.

Marilou, through her counsel Harry Roque, said the rationale behind the three-day notice rule was not violated in this case because the Pemberton camp had the opportunity to give their side on their motion.

Roque said lawyer Felimon Ray Javier, collaborating counsel for Pemberton, as well as City Prosecutor Emilie Fe Delos Santos were both present during the hearing of the motions and even made their comments.

The three-day notice rule, under the Rules of Court requires every written motion required to be heard to be served upon the adverse party at least three days before the date of hearing. This rule imposes upon the movant the burden of making sure that the other party actually receives his motion at least three (3) days before the hearing so that the adverse party may have ample time to prepare.

Roque pointed out that the rule is not absolute. He said non-observance of the rule is allowed as long as the rights of the other party were not prejudiced.

He also cited Marilou’s “right to access to justice” under international human rights law which exempts her from the requirement that a public prosecutor must conform to the motion that she will file in court.

“Under international human rights law, the private complainant and her family members have the right to access to justice, a right that is separate and distinct from the power of the public prosecutors to prosecute the criminal case,” Roque said.

Roque added that the issues raised in their motions “are issues of transcendental importance and of primordial public interest. Hence, it is essential that the honorable court resolve the two motions on its substantive merits.”

In a motion filed last December, the Laude camp asked the Olongapo RTC to order the Armed Forces to transfer the detention of Pemberton to the Olongapo City Jail.

In the said motion, Roque reiterated their position that Pemberton should be with Philippine authorities citing Article V, Paragraph 3 (b) of the Visiting Forces Agreement which states that “within the scope of their legal competence, the authorities of the Philippines and the US shall assist each other in the arrest of US personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.”

They also cited DOJ Opinion No. 94 issued by then Justice Secretary Serafin Cuevas which stated that in cases of particular importance and extraordinary cases, the Philippine government may refuse a US request for custody.

On their bid to allow media coverage, Roque said they have the right under international human rights law to know and be informed about the proceedings through the media, including what is happening inside the court room.

They cited the fact that Laude’s mother, Julita, and other members of the family resides in a far-flung area in Leyte making her unable to attend to all the proceedings in the case, aside from financial constraints, making her and the rest of the family dependent on the media for news on the case.

They also said that barring the media from the courtroom during the proceedings is tantamount to violation of the right to free speech and of the press.

“Barring the press from the courtroom might partake of a serious limitation on the rights to free speech and of the press. The so-called fourth estate has the constitutionally guaranteed protection to report on matters of great public interest, including criminal proceedings in this case,” the seven-page motion said.