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U.S. custody of Pemberton denigrates PH sovereignty

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THE suspected killer of transgender Jeffrey “Jennifer” Laude, Private First Class Joseph Scott Pemberton of the US Marine Corps 2nd Battalion 9th Marines, is in the custody of the United States.

Facebook account of Joseph Scott Pemberton
Facebook account of Joseph Scott Pemberton

A statement by the U.S. Embassy in Manila said Pemberton “ is being held onboard USS Peleliu while a joint Naval Criminal Investigative Service and Philippine National Police investigation is conducted. The United States will continue to fully cooperate with Philippine law enforcement authorities in every aspect of the investigation.”

USS Peleliu, which is in Subic Bay for PHIBLEX 15, a joint amphibious landing exercise, was due to leave Tuesday but its departure was put on hold because of this crime involving one of the American soldiers.

Laude, 26 years old, was found dead Saturday night with her head slumped in the toilet bowl in one of the rooms of Celzone Lodge in Olongapo City after Pemberton, with whom she checked in with, had left the room.

In a press briefing, Foreign Affairs Spokesman Charles Jose justified U.S custody of Pemberton by quoting Article V, Section 6 of the 1998 PH-US Visiting Forces Agreement which states that, “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.”

Jennifer Laude
Jennifer Laude

Does it mean that the U.S. made the request for custody of Pemberton and the Philippines granted it? Who of the Philippine officials granted the request of the Americans?

Jose didn’t give that information.

He even said that the DFA will request the United States to waive custody of Pemberton but “there is no guarantee that the US will grant this request.”

Armed Forces Chief Gregorio Catapang is of the same mind as foreign affairs officials.”Under the Visiting Forces Agreement, the custody of the erring soldier stays with the Americans,” Catapang said after a meeting with the U.S. Pacific commander, Admiral Samuel Locklear.

Justice Undersecretary Jose Justiniano has a different interpretation of the VFA provision.

He said “The law stated that the US government has to take a request, so, the implication is that we do have the primary custody.”

Justiniano should know. He was the counsel for Lance Corporal Keith Silkwood – one of the four accused of in the 2005 rape case of a Filipina in Olongapo . ( Silkwood and his two other co-accused were acquitted. Only Lance Corporal Daniel Smith was convicted.)

So we are back to the question who waived the primary right of the Philippines for custody over Pemberton?

The ampbious assault ship Peleliu in Subic Bay (US Navy photo)
The ampbious assault ship Peleliu in Subic Bay (US Navy photo)

Lawyer Harry Roque, chairperson of Center for International Law and teaches constitutional law and international law at the University of the Philippines College of Law, underscored the non-service related offense of Pemberton which makes custody by Philippine authorities over him compelling.

The killing of Laude did not happen during the military exercise. Pemberton did not do it while in performance of his duty. Roque said Pemberton should not be entitled to the protection given by the VFA to American personnel participating in joint military exercises.

It must be stressed here the difference between custody and jurisdiction.

There is no question about Philippine jurisdiction over U.S. personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.

It’s the issue of custody that is problematic even during the VFA negotiations because of the inhuman conditions of Philippine detention centers.

In the case of Daniel Smith, he was detained at the U.S. Embassy, which is considered a U.S. territory.

Centerlaw’s Romel Bagares said “A resolution dated January 28, 2014 in a case we filed to compel the DFA to renegotiate with US authorities on an ‘agreed facility’ for the detention of US servicemen being tried or convicted for a crime on Philippine soil, the Supreme Court took note of the fact that the Philippines has suggested to their American counterparts the AFP Custodial Center as one such ‘facility.’

The DFA and the AFP chief’s subservient stance on U.S. custody over Pemberton denigrates Philippine sovereignty – the supreme right of the state to command obedience within its territory.

With a diminished sovereignty, what does that make of the Philippines?