Custody tiff sparks Senate call for VFA, EDCA review

From the Daily Tribune (Dec 19): Custody tiff sparks Senate call for VFA, EDCA review

The custody tug-of-war between the government and the United States over US Marine Private First Class Joseph Scott Pemberton has prompted senators to call for the Palace to seriously consider reviewing the provisions of the Visiting Forces Agreement (VFA) as well as the recently signed Enhanced Defense Cooperation Agreement (EDCA).

Senate President Franklin Drilon and Sen. Francis “Chiz” Escudero made a twin call to the Executive to direct the Department of Foreign Affairs (DFA) in initiating a move to revisit the VFA since the agency has the sole prerogative over foreign policies.

Drilon backed the call to review the VFA as he himself expressed displeasure over the defiant stance being shown by the US Embassy in turning over Pemberton to government custody following the issuance of a warrant for his arrest.

“Their interpretation of the VFA was too technical. There was no consideration other than what they call as the letter of the agreement. Their interpretation was too strict,” Drilon said.

The DFA, Drilon said, should now take the cue in proposing the review and the possible revision of the VFA.

“The proposal to revise the VFA can’t reach us in the Senate without Malacañang starting it. That must be started, initiated by the two parties, represented by the Philippine President, President Aquino and the DFA and the US State Department,” he said in a radio interview.

“In my view, the Philippines must initiate the request of the review of the VFA because of what had transpired and for the negotiations to start. My proposal is to revise the provisions on detention and custody because these don’t comply with the Revised Penal Code as well as in our Rules of Procedure,” Drilon said.

Malacañang or the DFA must now send a note to the US State Department through the US Embassy requesting that both parties should sit down and discuss the possibility of reviewing the VFA, he said.

Drilon and Escudero explained that the authority to review is with the Executive and not the Senate.

The power to ratify treaties is vested in the President while the Senate’s authority is to concur or deny its consent, they emphasized.

“So the negotiation and whatever will be the contents of the agreement rests on the Executives of both countries,” Drilon said.

Escudero said the review should also include the EDCA, with a view to resolving the sticky issues on jurisdiction and custody.

“I don’t fault America for protecting and fighting for its soldier but America should also not fault us for trying to get custody or find ways to get custody. It should also expect that we’re out to protect the interests of our countrymen, especially the camp of the victim,” he said.

While th EDCA and VFA are two separate issues, Escudero said it cannot be helped that politics sometimes get in the way on what are supposedly military policies especially when criminal acts are committed.

“I’m not asking for the EDCA to be replaced or for the abolition of the VFA. I’m just saying that we should renegotiate (the provisions on) criminal jurisdiction especially on custody,” he said.

“Whatever will be agreed upon, anything better than what we have right now is welcome,” he said.

“I also expect the government to continue asking for custody, to find ways to convince the US to give custody (over Pemberton) to the government,” Escudero said.

Short of a final conviction, the United States cannot be compeled to surrender Pemberton to Philippine custody despite the arrest warrant issued by an Olongapo court in the murder case of Jeffrey “Jennifer” Laude, Justice Secretary Leila de Lima said.

De Lima said under the VFA, the US government could be compelled to transfer Pemberton to Philippine custody only if he would be convicted in the murder case by the trial court.

“We can only compel (the US government) for certain upon conviction because we will have to jail him. But at this stage (where the arrest warrant has been issued), there are certain provisions that are subject to varying, differing interpretations (from both sides),” she stressed.

“I already said it before: one of the problems is that until now, the implementing guidelines have not been completed after about two to three years in the making. There are certain aspects that both camps could not agree on,” she pointed out.

Some of the provisions in the VFA are “vague” and “prone or susceptible to varying or differing interpretations,” De Lima underscored.

“That is why every time there is this kind of case, it’s inevitable that such problems would recur. There are really vague provisions in the VFA,” she stressed.

“The Pemberton case is clearly an extraordinary case under Article V Paragraph 6 of the VFA. This separate provision states that for extraordinary circumstance, the Philippine government may insist on custody. To me, the murder case where a fellow Filipino was allegedly subjected to treachery and cruelty should suffice as qualifying circumstance,” she explained.

The said provision of the VFA states that the custody of any US 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.

It further states that the US military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available in time for any investigative or judicial proceedings related to the offense with which the person has been charged.

In extraordinary cases, the Philippine government shall present its position to the US government regarding custody, which the latter shall take into full account.

The VFA also provides that the confinement or detention by Philippine authorities of US personnel shall be carried out in facilities agreed on by appropriate Philippine and US authorities. US personnel serving sentences in the Philippines shall have the right to visits and material assistance.

It was the same provision being invoked by the US government in rejecting Manila’s request.

The Department of Foreign Affairs, however, already announced it would not appeal the decision of the US given the assurance from the US that Pemberton would be made available during the entire judicial process.

Malacañang also said that United States should produce Pemberton in court today.

Pemberton is scheduled to appear before the Olongapo RTC Branch 74 on Friday following the issuance of the warrant for his arrest.

Presidential communications Secretary Herminio Coloma Jr, in a radio interview, said that the best interest to deliver justice must be maintained due to the crime committed.

He said that while the United States upholds the VFA, the jurisdiction for the crime committed is still within the Philippines which entails following the procedure of the local courts.

“The judge will set a date for the trial and according to the commitment of the United States, it will produce the accused in all the rightful hearings and if his presence is needed by the court,” Coloma said.

“In our understanding, the jurisdiction of criminal cases is in the hands of our Republic, that’s why the Olongapo City Prosecutor’s office is conducting investigations. And after that, the findings were presented to the Regional Trial Court and there the judge issued the warrant of arrest,” Coloma added.

Earlier, Pemberton was a no show during the early stages of the judicial procedure.

“Their commitment is to produce the accused in all the trials and hearings called for by the court. That’s why the process of hearing the case won’t be delayed while the issue on custody is still being discussed,” Coloma said.

FVR cites ‘higher interest’

Former President Ramos said the issue of Pemberton’s custody should not damage the Philippines’ close relationship with the US as he cited that “higher interests” should prevail.

In a chance interview after the 79th anniversary celebration of the Armed Forces of the Philippines (AFP) in Camp Aguinado, Ramos said the Philippines is currently a victim of bullying that should be considered primarily in dealing with the Pemberton case.

The former president, who also served as defense chief during the time of the late President Cory Aquino, expressed apologies to the family of Filipino transgender Jeffrey Laude.

“On that issue (Pemberton’s custody), for all of us, must not be the cause for the damage of Philippine-US relations because there are higher interests,” said Ramos.
“I am 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 (names) any more,” added Ramos.

Ramos was apparently referring to the dispute in the West Philippine Sea where the Philippines has overlapping claims over some islets and reefs with neighboring countries, particularly China.

The Philippines has filed a formal complaint before the International Tribunal on the Law of the Sea against China over its intrusion into Philippine-claimed and owned territories in the West Philippine Sea.

However, Beijing refused to participate in the Itlos proceedings.
On the other hand, US Ambassador Philip Goldberg, who was also present during the AFP anniversary, refused to answer media queries.

On Wednesday, Goldberg stressed the US stand to retain custody of Pemberton, who is currently detained at the US facility inside Camp Aguinaldo, while allowing judicial process under Philippine laws.

Relatedly, the Communist Party of the Philippines (CPP) condemned US position retaining custody of Pemberton, who has been issued a warrant of arrest over the killing of Laude last Oct. 11 in Olongapo City.

“The CPP joins the Filipino people in condemning the US government and military for rejecting the Philippine government’s request to have custody of US marine serviceman Joseph Scott Pemberton who has been indicted for the murder of Jennifer Laude,” the CPP said.

“The freedom-loving Filipino people condemn the Aquino government for its tepid response to the contemptuous US position and refusal to assert full Philippine jurisdiction over the murder case beyond the confines set the VFA,” it added.

The CPP said that the VFA has again prevented the Philippine government from exercising full jurisdiction over a criminal case involving a US serviceman demonstrates once more that it is an overwhelmingly lopsided agreement favoring the US military and is violative of Philippine sovereignty.

“The Filipino people repudiate the Aquino regime’s spineless position. By acceding to the position of the US government, Aquino has not only failed the Laude family who continue to suffer from the tragic loss of Jennifer at the hands of an American serviceman; but has also shown zero respect for the Filipino people’s national dignity,” the CPP said.

The CPP expressed support to calls for the immediate abrogation of the Visiting Forces Agreement as well as all other lopsided agreements such as the Enhanced Defense Cooperation Agreement (EDCA) and the Mutual Defense Treaty and for an end to US military presence in the Philippines.

http://www.tribune.net.ph/headlines/custody-tiff-sparks-senate-call-for-vfa-edca-review