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PH won’t fight for Pemberton custody

After the United States denied its request, the Philippines will no longer insist on having custody over a US marine charged with murdering a Filipino transgender woman in her own country.

The Philippine Department of Foreign Affairs (DFA) said it will not send additional requests to the US government for custody over Lance Corporal Joseph Scott Pemberton.

DFA Spokesperson Charles Jose said the US embassy in Manila’s denial of the Philippines’ request for custody was consistent with the Visiting Forces Agreement (VFA) between Manila and Washington.

“We will not request anymore. We will just wait for the court’s advice on when the trial will start, [and] when we expect Pemberton to appear [in court],” Jose said in a press briefing on Thursday, December 18.

The DFA sent a note verbale to the US embassy Tuesday night, requesting for custody over Pemberton. Yet the embassy on Wednesday denied the Philippines’ request, citing the VFA provision that the US retains custody of a suspect “until the completion of all judicial proceedings.”

The US insisted on custody even after an Olongapo regional trial court issued an arrest warrant for Pemberton over the killing of Jeffrey “Jennifer” Laude last October in Olongapo City.   

While saying that the US denial was “in accordance” with the VFA, Jose said the DFA shared the position of Justice Secretary Leila de Lima that murder qualified as an “extraordinary case” which gives Manila basis for insisting on custody. 

“That was our grounds for requesting custody, which we had already done. They (US) took it to account but they decided to retain custody,” Jose said.

Asked why the US interpretation of the VFA prevailed over that of the Philippines, Jose responded: “They have custody over the person. They can decide whether to give him up or not.”  

In a separate interview, De Lima said that conflicting interpretations of the VFA cannot be avoided because of the deal's "vague provisions." The justice secretary is a member of the VFA Commission.

“Until now, we have not completed the implementing guidelines. We’ve been working on it for two or more than two years. It’s because some of the provisions are prone or susceptible to varying and differing implementations,” De Lima said. 

Pemberton faces a murder case for allegedly choking Laude to death after discovering that she was a transgender. Laude was found in the bathroom of a motel in Olongapo on October 11. She was last seen with the US marine after the two met at a disco bar.

Laude’s killing renewed calls to abrogate the VFA for being skewed in favor of the US. Filipino lawmakers, Laude’s family, activists and LGBT groups question the sensitive issue of custody under the agreement. 

In Washington, US State Department Spokesperson Jen Psaki noted reports that Pemberton is to make a court appearance later this week. She reiterated that the US will continue to cooperate with the Philippines. 

"Any offenses alleged to have been committed by US service members will be handled in accordance with the Visiting Forces Agreement (VFA). In accordance with that agreement the United States is retaining the suspect until completion of all judicial proceedings," Psaki said.  

'Pemberton needs aircon'

Jose downplayed the US’ rejection of the Philippines’ request for custody.

“We should not lose sight of the bigger picture, which is to get justice. With [the criminal] jurisdiction with us, we can try Pemberton in a Philippine court under Philippine laws. That’s more important. If found guilty, Pemberton will serve time in the Philippines,” he said.

The DFA spokesperson said that Pemberton will stay at the Philippine military headquarters in Camp Aguinaldo for the duration of the trial.

As a compromise, the US agreed to move Pemberton to the military camp from the USS Peleliu, a US navy ship.

The marine is in an air-conditioned container van “under the guard of US military personnel, with perimeter security provided by the Armed Forces of the Philippines,” said the US embassy.

Jose said the situation can be described as “joint guarding,” but not joint custody over Pemberton.

Responding to reporters’ questions, the assistant secretary described in jest Pemberton’s condition. “Imagine he’s inside a container van. 'Pag tinanggal ang aircon, mamamatay siya doon. (If you take out the air-conditioner, he will die.)

'Executive, not courts, have say'

The spokesperson added that under the VFA, the Philippines will only get custody over Pemberton if he is convicted. Even then, Jose said the US and the Philippines have to both agree on where to detain Pemberton.

Jose said that Philippine courts have no say on the detention facility.

“Because it’s the implementation of a treaty, that lies with the executive [branch]. The executive will determine that: the DFA, [defense department,] Armed Forces, and the Department of Justice,” Jose said in a mix of English and Filipino.

The assistant secretary said what the Philippines “made clear” with the US is that it will not be amenable to Pemberton being detained in the US embassy while the trial is underway.

“An embassy is a sovereign territory so we do not want a repeat of what happened before. Because if he is detained in the embassy, it’s like he has immunity,” Jose said.

The spokesperson was referring to the case of Lance Corporal Daniel Smith, who was accused of raping Filipino Suzette “Nicole” Nicolas in 2005. In Smith’s case, then US Ambassador Kristie Kenney and then DFA Secretary Alberto Romulo agreed to transfer him from the Makati City Jail to the US embassy in the dead of the night.

Smith was convicted but later freed after Nicolas recanted her testimony.

Despite criticism of the lopsided arrangement, Jose said the Philippines and the US have a common goal.

“We want justice for Jennifer Laude. We think we’d be able to attain that objective given the provisions of this treaty obligation we have,” Jose said. – Rappler.com.