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VFA: Confusion over custody

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By LAURO L. BAJA, JR

2Jennifer LaudeTHE killing of Jennifer Laude, a Filipino citizen, allegedly by American PFC Joseph Scott Pemberton, in the Philippines brought open to the fore the provision of the Visiting Force Agreement (VFA) especially sections of Article 5 on criminal jurisdiction and custody of erring U.S. servicemen.

The VFA gives the Philippines jurisdiction over criminal cases such as that of Pemberton and Lance Corporal Daniel Smith in 2005.

Paragraph 6 of Article 5 however provides: “The custody of any U.S. personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with U.S. military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings…. In extraordinary cases, the Philippine Government shall present its position to the U.S. Government regarding Custody, which the U.S. Government shall take into account.”

It should be instructive to find out why the negotiations separate the concept of jurisdiction from that of custody. Jurisdiction should encompass custody. For an effective exercise of jurisdiction, the court must have authority over the crime committed and also over the person accused of the crime.

3Joseph Scott Pemberton. From his Facebook.The difficulties and challenges in implementing Article 5 of the VFA which happened in 2005 involving U.S. serviceman Smith are again being replayed nine years after in the Pemberton case.

It is hoped that some lessons are learned from the Smith case.

Then a docile secretary of foreign affairs became easy prey to a charming but cunning U.S. ambassador and entered into an agreement which allowed Smith to be spirited out of a Makati jail in the dead of the night. The whole episode subverted Philippine judicial processes. No wonder the Supreme Court declared the agreement unconstitutional.

The supposed detention of Pemberton in the JUSMAG compound inside Camp Aguinaldo technically puts him under the joint custody of the Philippines and the United States.

The measure is ad hoc, band aid.

There is need for a protocol to address the issues and consequences in implementing Article 5 of the VFA brought about by the Smith and Pemberton cases.

It is a convoluted article which needs to be clarified and strengthened. Enforcement of its provisions is hobbled by unclear rules.

As a result of the Pemberton case, there are calls for review/renegotiation/ revision of the VFA. The necessity and wisdom for such advocacy should be the subject of another study.

Already Sen. Miriam Santiago and Rep. Walden Bello have filed a joint resolution calling for the termination of the VFA. It should be noted that the agreement has been declared constitutional by the Supreme Court. It does not admit piecemeal revision.

In the meantime, there is a need for a protocol to address gaps in operationalizing Article 5 of the VFA even as we debate the necessity for the Philippines for the Visiting Forces Agreement and eventually the Enhanced Defense Cooperation Agreement.

(The author is a veteran Philippine diplomat. He was the Philippine Permament Representative to the United Nations from May 2003 to February 2007. Prior to that, he was Foreign Affairs Undersecretary for Policy.)