SUMMARY
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MANILA, Philippines – The family of slain Filipino transgender woman Jennifer Laude is asking an Olongapo regional trial court to amend the arrest warrant it issued against the US marine accused of killing her,
On December 16, the Olongapo Regional Trial Court (RTC) Branch 74 ordered the arrest of Lance Corporal Joseph Scott Pemberton for the murder of Laude in Olongapo City last October.
In an urgent ex-parte motion filed through her lawyers on Wednesday, December 17, the victim’s sister Marilou Laude expressed concern about the implementation of the arrest warrant because it was addressed through the Philippine Department of Foreign Affairs (DFA).
The DFA is not a law enforcement agency, the motion noted.
The Laude camp said that coursing the arrest warrant through the DFA may subject the agency’s implementation to its “interpretation of the legal circumstances of the Accused [Pemberton], thus adversely affecting the power of the Honorable Court to implement the said arrest warrant.”
“What the arrest warrant unwittingly does is to give the DFA the exclusive and plenary powers to determine the propriety of its service to the Accused,” the motion added.
The Laude camp is referring to conflicting interpretations of the provisions under the Visiting Forces Agreement (VFA) between Manila and Washington.
Paragraph 6 of Article V of the VFA reads: “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.”
It also provides that in “extraordinary cases,” the Philippines may seek custody over erring US personnel, “which the United States Government shall take into full account.”
In a Thought Leaders piece for Rappler, lawyer Evalyn G. Ursua said that the US and Philippine governments interpreted the VFA differently, especially provisions on custody. Ursua was the lawyer of a Filipina who accused a US serviceman of rape a decade ago. While the American soldier was convicted, the court eventually dismissed the case against him when the Filipina, called “Nicole,” withdrew her testimony. (READ: EDCA, Olongapo murder, and the old case of Daniel Smith)
On Wednesday, the US denied the Philippines’ request for custody over Pemberton. The American serviceman is detained at the Philippine military headquarters in Camp Aguinaldo, but remains under the protection of US military personnel.
The Philippines said it will no longer insist on custody, and will instead wait for the court’s advice on the start of the trial.
Prosecutors earlier found probable cause to charge the American serviceman for murder. He was last seen entering a motel with Laude, before the latter was found dead in the bathroom with her head slumped against the toilet.
‘Court has control’
In the motion, the Laude camp argued that the court has control over proceedings involving a jurisdictional matter, “even if it may well involve the country’s relations with another foreign power.”
“It is a legal and not a political question, properly belonging to the judicial branch and not to the political branch,” the Laude camp added.
They also cited the Supreme Court in Liang (Huefeng) v. People, part of which reads: “First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by any immunity. The DFA’s determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts.”
The Laude camp asked the court to allow both the DFA and any officer of the law to implement the arrest warrant. – Rappler.com
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