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US denies PH request for custody over marine

The United States turned down the Philippines’ request for custody over a US marine accused of killing transgender Filipino woman Jeffrey “Jennifer” Laude on Philippine soil.

The US Embassy in Manila said in a statement on Wednesday, December 17, that it will retain custody of Lance Corporal Joseph Scott Pemberton, “as provided by the United States-Philippines Visiting Forces Agreement (VFA).”  

“The VFA states that the United States has the right to retain custody of a suspect from the commission of the alleged offense until completion of all judicial proceedings. Pemberton is being held at a Philippine military base, Camp Aguinaldo, under guard of US military personnel, with perimeter security provided by the Armed Forces of the Philippines,” the embassy said.    

The US said that it will continue to work closely with the Philippines “to help ensure justice is served and the rights of all persons are protected." 

“This includes making the suspect available for all appearances required by the Philippine judicial system.” 

The Philippines said it is "disappointed" that the US chose to "invoke [its] rights under the VFA to maintain custody" of Pemberton. Also citing the VFA, Manila's Department of Foreign Affairs (DFA) said that it asked the US to waive custody over the marine. 

"We expect the US to honor its obligations under the [VFA] and ensure that PFC Pemberton is made available for all required appearances before the appropriate Philippine authorities as related to the investigation and trial," DFA spokesperson Charles Jose said in a statement. 

Jose said that Pemberton will "remain detained in sovereign Philippine territory, and our Armed Forces will actively participate in ensuring that he remains in the agreed detention facility." 

The DFA said it will continue to make "the necessary representations" to support the judicial process. "We will also remain vigilant in ensuring that the US continues to remain faithful to their obligations under the VFA, to ensure that justice is obtained." 

In an interview with radio DZRH earlier on Wednesday, US Ambassador to the Philippines Philip Goldberg already cited the VFA as basis for refusing to give the Philippines custody over Pemberton.

Goldberg said that under the VFA, Pemberton cannot be detained in an Olongapo City jail, as Laude’s relatives, some lawmakers, and militant groups have been calling for.

Pemberton is detained at the Philippine military headquarters as a compromise between the US and the Philippines, but Washington retains custody over him. Goldberg said this showed that the US even went beyond the VFA "to try to be sensitive to the Philippines and Filipinos." 

“The custody issue is the right of the US under the VFA to maintain, throughout the judicial proceedings. The VFA doesn't allow [detention in Olongapo]. The VFA is the governing document, something signed between our two countries and it requires that if we assert that custody will remain with us, it will be done in that way,” Goldberg said.

On Tuesday, the DFA sent letters to the US embassy formally asking for custody over Pemberton. The request came after an Olongapo regional trial court issued an arrest warrant for Pemberton, stemming from a murder case filed against him on Monday.

Laude, 26, was found dead on October 11 in the bathroom of a motel room in Olongapo City, with her head slumped against the toilet. Witnesses said she checked into the motel with Pemberton after the two met at a nearby disco bar.

Pemberton, 19 then, participated in military exercises between the US and the Philippines in October.

In the charge sheet against Pemberton, prosecutors said Laude’s killing was an unprovoked and relentless attack against a defenseless victim. They said Pemberton choked Laude from behind.

"Obviously, in that position, Jennifer was deprived of the opportunity to defend herself. Undeniably, respondent (Pemberton) made sure that Jennifer was dead. He did not stop at badly beating her up and choking her, he made sure she suffered to her death,” the prosecutors said.

"He deliberately and repeatedly plunged her head down the toilet until she breathed her last,” they added.

The incident fanned anti-American sentiment, and strained relations between Manila and Washington. The Philippines is a former colony, and a close treaty ally of America. 

Private First Class Joseph Scott Pemberton faces a murder case for the allegedly 'unprovoked and relentless attack' that killed Jennifer Laude. File photo

US, PH see VFA differently

Laude’s killing renewed calls to abrogate the VFA, with activists saying it is lopsided in favor of the US. The US and the Philippines signed the military deal in 1998, and there is no provision allowing amendments.

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 is the former counsel of Suzette “Nicole” Nicolas, the complainant in the 2005 rape case also in Olongapo City, where US marines led by Lance Corporal Daniel Smith were the suspects. A Philippine court convicted Smith, but Nicolas later recanted her testimony, leading to his acquittal by the appeals court.

Ursua said that in both the Laude and Nicolas cases, the US invoked paragraph 6 of Article V of the VFA, which states that US shall have custody over any US personnel over which the Philippines is to exercise jurisdiction.

Ursua argued that this was contrary to the intent of the Philippine government when it agreed to the VFA. She said custody of any US serviceman accused of committing a crime against a Filipino within Philippine territory should be with Philippine authorities once a case is filed in court.

She pointed to the Philippine Senate’s deliberations on the VFA, and other provisions of the agreement to illustrate this.

For instance, paragraph 4 of Article V of the VFA reads: "Within the scope of their legal competence, the authorities of the Philippines and the United States shall assist each other in the arrest of United States personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.”

Ursua added that when heinous crimes like rape and murder are involved, the Philippines may refuse a US request for custody. Yet in the Laude and Nicolas cases, the Philippines never had custody of the suspects from the start.

OLONGAPO MURDER. CCTV footage shows the victim, Jennifer Laude, and the suspect, US Private First Class Joseph Scott Pemberton, before the crime allegedly happened in a motel in Olongapo City.

PH senators: City jail for Pemberton

Legal experts in the Philippine Senate agreed that the Philippines should have custody over Pemberton.

Senate foreign relations committee chairperson Miriam Defensor Santiago said that the Philippines must determine where to detain him.

“Normally, any person who has been formally accused in court goes to city jail. So Pemberton should go there. The normal measure for Filipinos should be taken as the normal measure as well,” said Santiago, an expert in constitutional and international law.   

She warned against special treatment for the US marine. 

“Otherwise, we will be giving undue discrimination in favor of a foreign national in our own country. We don’t want that to happen. All that the Philippines is asking for is that the steps to be taken with Pemberton be pursuant to the steps to be taken with a Filipino is a similar situation,” Santiago added.

Senator Francis Escudero, also a lawyer, said Pemberton must be detained in an “ordinary cell like an ordinary criminal.”

“Some of our fellow Filipinos were oppressed abroad. Why would we put a foreigner on a pedestal and give him special treatment more than the Filipinos in their own land?” – Rappler.com