Who has custody over US Marine? DOJ differs with DFA

MANILA, Philippines (UPDATED) – Who really has custody over US Marine Private First Class Joseph Pemberton, the primary suspect in the murder of Filipino transgender woman Jennifer Laude? 

Justice Secretary Leila de Lima on Wednesday, October 22, said Pemberton’s transfer from USS Peleliu in Subic to Camp Aguinaldo was already an indication that the Philippines already has custody over the soldier.

Her position, however, contradicted the statements of Foreign Secretary Albert Del Rosario and the US embassy that, under the Visiting Forces Agreement (VFA), his legal custody remains with the US despite his being detained in Philippine military grounds.

De Lima even told reporters the Philippine government may reject any requests from the US government to take Pemberton into its custody.

“[Pemberton’s transfer] just showed that they (US government) willingly gave Pemberton to our custody while waiting for the results of the [preliminary investigation]. Their main commitment under the VFA is to ensure his availability and accessibility for purposes of investigation and judicial proceedings,” she said.

Her comments came after a party-list lawmaker asked her to provide a legal opinion on custody under the VFA to clarify the issue. 

De Lima’s comments, however, added to the confusion over who really has custody over the US soldier. 

In a surprise development on Wednesday, October 22, US Marine Private First Class Joseph Pemberton was transferred to a 20-footer van in Camp Aguinaldo from the USS Peleliu docked in Subic as a result of a joint agreement between the Department of Foreign Affairs (DFA) and the US embassy.

Pemberton is facing charges for the killing of Laude, a Filipino transgender woman, in Olongapo City. Police have tagged the incident as a hate crime. 

Although his detention facility is located in a Philippine military camp, both the US embassy and the DFA have said in separate statements that he remains to be under the custody of the United States.  

But Foreign Secretary Albert del Rosario said the Philippines will insist on getting custody over Pemberton. (READ: Why PH must assert sole custody over US marine)

Del Rosario told a Senate hearing on Wednesday that DFA believes that Philippine custody over Pemberton should take effect once an arrest warrant has been issued against him. The case is still under preliminary investigation.

Critics of the VFA have used the custody issue to argue that the deal is lopsided in favor of the US, due to the provision stating that the custody of any US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with US military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. (READ: ‘VFA is a failure’ – Miriam)

The case of US Marine Corporal Lance Daniel Smith, charged with raping Filipina Suzette Nicolas – initially called “Nicole” by the media – in 2006, served as a test case for the provision. Throughout his trial and after his conviction, which he appealed, Smith was held at the US embassy grounds in Manila. He was acquitted after Nicolas recanted her statement against him, and immediately left the country.

Clarification

In his letter to De Lima, Bello sought DOJ clarification on several issues, among them, that since the US has yet to formally notify the Philippines of a request for custody of the suspect pending the completion of legal proceedings, “does the absence of such notice mean that custody over the suspect should thus reside with the Republic of the Philippines?”

De Lima concurred with Bello. She told reporters it would be the Philippine government who may reject the request of the US government for Pemberton’s custody. 

“[The] Philippine government has also the discretion to insist further on his continued custody by Philippine authorities, by citing compelling or extraordinary reasons,” she told reporters in a chance interview.

De Lima’s statements, however, also ran counter to the earlier statement of Justice Undersecretary Jose “JJ” Justiniano. 

Justiano, who was one of the defense lawyers of the 4 US Marines who were charged for the 2005 rape case of Suzette Nicolas in Subic, echoed Del Rosario’s statement. He said the US government may have custody over Pemberton even if he is detained in Camp Aguinaldo.

Bello said that under the VFA, if Philippine judicial proceedings against US military personnel are not completed within one year, US military authorities shall be relieved of their obligation to make US military personnel available for the purpose of such proceedings. 

Considering this, he asked: “We are requesting your opinion on whether extradition proceedings under the 1994 Extradition Treaty between the Republic of the Philipines and the United States would be the appropriate remedy for our government should this occur.”

He added that the VFA defines “United States personnel” as “United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine government.”

“Considering that Ms Laude’s death was in no way connected with activities approved, or even contemplated, by the Philippine govenrment when it entered into the Visiting Forces Agreement, we are also requesting your opinion on whether or not the said agreement governs the incidents of this case,” Bello said.

US probe

Despite her stance, De Lima said there is nothing stopping the US from conducting its own separate probe on the case.  

“Even if we have primary jurisdiction over the case, it does not mean that the US military authorities are barred from investigating,” she explained. 

“Under US military laws, there should also conduct investigation. If that is so, there’s nothing wrong with that because they have the right to investigate for their own purposes,” she added

In a press conference on Wednesday, Armed Forces of the Philippines Chief General Gregorio Catapang Jr said that Pemberton’s transfer to Camp Aguinaldo was the United States’ way of showing that it respects the justice system of the Philippines. 

Leftist lawmakers belonging to the Makabayan bloc in the House said Laude’s murder shows the VFA must be abrogated.  

President Benigno Aquino III himself has, however, defended the VFA. He said he does not believe “the sin of one person should be reflective of the entire country.”

The Senate has the jurisdiction to approve, review and repeal executive agreements such as the VFA. Senator Miriam Defensor Santiago has started a probe into Laude’s slay. (READ: Miriam: US marine given special treatment) – Rappler.com