Is custody provision in VFA fair? Palace mum

Natashya Gutierrez
Is custody provision in VFA fair? Palace mum
Malacañang is mum on the controversial Visiting Forces Agreement provision giving the US custody of its servicemen who commit crimes in Philippine territory

MANILA, Philippines – Malacañang on Thursday, October 16, evaded questions on the Visiting Forces Agreement (VFA) provision giving the United States custody of its servicemen who commit crimes in the Philippines, even as the government announced plans to request for the custody of a US Marine accused of killing a transgender woman in Olongapo City.

In a news conference, Communications Secretary Herminio Coloma Jr reserved comment on the administration’s position on the provision that has again spurred debate following the death of Filipino Jeffrey “Jennifer” Laude. Private First Class Joseph Scott Pemberton has been tagged as the suspect in Laude’s murder.

“The DFA (Department of Foreign Affairs) will state the position of the government. Our position is that justice must be served and we would like to be able to protect the interest, the national interest of the Philippines and its citizens,” Coloma said, when asked about Malacañang’s views on the provision.

Coloma did admit, however, that the provision was reviewed by the government in coordination with the United States a few years ago, but this did not result in any formal agreement on revising the provision.

He also said the death of a fellow Filipino is “not acceptable,” and is enough to again trigger scrutiny of the provisions of the VFA “to ensure the existence of national interest and justice for our countrymen.”

“It was addressed and it’s still being addressed because of the new development that has arisen,” he said.

The VFA, an agreement between the two governments, allows the rotation of US troops in the Philipines including the entry and movement of US assets. 

Article V, Paragraph 6 of the VFA states: “The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with the United States military authorities, if they so request.”

Activists have again questioned the constitutionality of the VFA – as it did a few years ago when US Lance Corporal Daniel Smith was convicted of raping Filipina Suzette Nicolas, initially identified by the media as “Nicole,” in Subic. (READ: EDCA, Olongapo murder, and the old case of Daniel Smith)

Back then, the Philippine government turned over custody of Smith to the US Embassy, where he remained while his case was pending before the Makati City court and even after the same court had convicted and sentenced him to 40 years. Smith flew back to the United States after he was acquitted 3 years later by the Court of Appeals.

Gov’t wants custody

Also on Thursday, the DFA hosted an inter-agency meeting which gathered various government agencies involved in the case.

DFA spokesperson Charles Jose told Rappler the meeting was held “to make sure that everyone is reading from the same page.” He declined to divulge details of the discussion.

The DFA has said it will ask for custody of Pemberton once the court issues a warrant for his arrest. Pemberton is currently being held onboard USS Peleliu while a joint Naval Criminal Investigative Service and Philippine National Police investigation is being conducted.

Jose told Rappler the Philippines would seek custody of Pemberton “because of the nature of the crime.”

“A murder case is being contemplated, so I think it’s important for us to have custody of the suspect to ensure that justice will be served,” he said.

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