US Navy conducts own rape probe

The United States Naval Criminal Investigation Service (NCIS) is conducting a parallel investigation of six US Marines accused of raping a 22-year-old Filipina at the Subic Freeport in Zambales last Nov. 1.

Capt. Burrel Parmer, public affairs officer of the 31st Marine Expeditionary Unit (MEU) to which the six soldiers belong, said the US also wants to dig deeper into the case and assured Filipinos that the suspects are under the custody of the US Embassy.

"Currently, the (NCIS is) investigating from the US side. I don’t know exactly what the Philippine side is investigating, but I know there" is an ongoing investigation, he said.

Parmer said the US State Department coursed its order through the US embassy in Manila, which in turn directed the NCIS to conduct a probe into the rape charges.

"We just want to keep to the facts and the truth," he said, hinting that the parallel investigation could also lead to the filing of charges against the six soldiers before the US military court.

Parmer said he has limited knowledge of the ongoing investigation but added that right now, the six suspects remain under the custody of the US embassy. Proof of this, he said, is that the six US Marines were shown to a Philippine official the other day.

Parmer also said there is no truth to reports that Washington wanted to bring the six suspects back to the 31st MEU’s home base in Okinawa, Japan.

Parmer asked the media not to engage in too much speculation in order not to impede the ongoing investigation into the incident. He added that, since the incident is still under investigation, it would be unfair to render judgment this early.

While he is not aware of the sentiments of US Marines back in Okinawa, Parmer said the Marine Corps takes the Subic rape case very seriously.

Custody against Constitution?

A lawyers’ group said the US Embassy’s continued custody of the six US Marines is a violation of the Philippine Constitution.

Lawyer Neri Colmenares, who heads the Counsels for the Defense of Liberties (CODAL), said if the court finds strong evidence that the suspects are guilty of rape, they have to be put in a local prison just like everyone else in similar circumstances.

The group cited that under a provision of the 1987 Constitution, anyone who commits a capital offense in the Philippines is ineligible for bail nor can he or she be released on recognizance when the evidence of guilt is strong.

"Rape is a capital offense since the rape they were accused of committing — by ‘two or more’ persons — the six Marines may get the death penalty if convicted under Section 11 of Republic Act 7659 or the heinous crimes law," Colmenares said.

He stressed that no treaty, not even the Visiting Forces Agreement (VFA), can circumvent the Constitution.

Colmenares said the US will also violate the VFA if it insists on having absolute custody of the accused. "It is the duty of the US personnel to respect the laws of the Republic of the Philippines... The US government shall take all measures within its authority to ensure that this is done," he said, citing Article 2 of the agreement.

According to Colmenares, the current custody exercised by the US is already patently illegal since Washington has not filed an official request for custody of the accused, as required by the VFA.

But even if a formal request had been filed, the initial custody by the US would become illegal if Manila refuses to grant the request.

"A ‘request,’ the term used in the VFA, connotes that it may be refused by the Philippine government. To interpret this provision otherwise will virtually render the Philippines with essentially no criminal jurisdiction over the matter, contrary to the claim of President Arroyo," Colmenares said.

He warned that, "by recognizing the right of the US to maintain custody of the accused, (Mrs.) Arroyo has placed the acquisition of jurisdiction over the crime at the discretion of the US. Under Philippine criminal laws, local courts can only try a case if they have jurisdiction over the offense charge and the person of the accused. Unless the accused is arrested or surrenders to the authorities, no court can try the rape case."

Colmenares also pointed out that a trial in absentia is prohibited in the Philippines before the accused is arraigned.

"Filipino officials like Undersecretary Zosimo Paredes, who intervene and defend the US position, are not only violating Section 1, Article 11 of the Constitution on patriotism, but may also be charged with obstruction of justice," he said.

Paredes is the executive director of the Presidential Commission on the VFA.

Sen. Mar Roxas, for his part, said the Philippines "has the choice of custody," citing the Senate transcript of the VFA deliberations. He said it was during the interpellation between the late senator Blas Ople, the sponsor of the bill, and the late senator Rene Cayetano on Article 4, Section 6 of the agreement that they interpreted the phrase "the custody of the US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with the US military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings."

"Ople clarified, and I quote, ‘We do not surrender custody except upon request. Of course this request must be evaluated and therefore, at no point do we relinquish our effective control,’" Roxas said.

He added that the "deliberations also focused on extraordinary cases where the Philippines, in no case, would relinquish jurisdiction... Senator Cayetano asked what does the phrase ‘extraordinary cases’ mean, and Senator Ople replied that it pertained to non-bailable crimes."

Roxas pointed out that since rape is punishable by imprisonment up to death, the rules of court classify it as a non-bailable offense.

"The Senate deliberations serve as a useful tool in clarifying the intent of the applicable provision on custody and how it should be understood... Ople categorically stated that there can be no automatic termination of Philippine jurisdiction over a crime committed in our country by US servicemen," he said.

The Senate transcripts, according to Roxas, also show that should the offender manage to leave the country for the US, the Philippines can invoke the extradition treaty and demand the offender’s return to the country to face trial.

‘Forcible abduction’

Cebu Rep. Antonio Cuenco said initial investigation conducted by the congressional oversight committee on the VFA, which he co-chairs, indicates the US Marines may have committed the crime of rape with forcible abduction, allegedly taking the victim against her will to a waiting van where at least one raped her.

"I do not want to preempt the prosecutors, but (from) my lengthy interview with the mother and the victim, I believe there is a prima facie case for rape with forcible abduction, a heinous crime punishable by death," he said.

Cuenco, who also chairs the House committee on foreign affairs, said the parents of the victim — both retired military officials — told him they would pursue the case to its conclusion.

"The (victim’s) family, who owns two department stores in Zamboanga City and Davao, has disputed the allegation that (she) was a bar girl who chases US soldiers in Mindanao and Olongapo," he said.

Cuenco said that since the VFA only gives the government one year to resolve the case, he is proposing marathon court hearings.

"Once the regional trial court hands out its decision and the parties appeal the decision before the Supreme Court, the one-year period provided in the VFA will no longer apply," he said.

Another senator, Manuel Villar, said there have been 13 criminal incidents involving US soldiers who took part in the VFA war exercises from 2000 to 2005, ranging from vehicular accidents and oil spillage to mauling and accidental shooting.

"We should really analyze if the VFA is more disadvantageous for us than beneficial. And this also proves that we should not be too quick to dismiss or label unfortunate incidents as ‘isolated.’ Who knows if there are more unreported incidents, unfortunately some victims prefer to suffer in silence?" said Villar, vice chairman of the Senate committee on foreign relations.

He said almost all these VFA-related incidents "have been resolved. In most instances, fines or payments for physical injuries and damages to properties were just given or paid, then the charges were dropped or resolved."

Meanwhile, veteran lawyer Katrina Legarda will help the alleged victim pursue the case against the six US Marines, Department of Social Welfare and Development (DSWD) Secretary Luwalhati Pablo said.

Legarda’s legal assistance is part of a memorandum of agreement the DSWD forged with the Child Justice League, a non-government organization headed by Legarda, who will be assisted by June Ambrosio, another lawyer who is also from the same group.

Pablo said the DSWD has been providing the victim and her mother with "crisis counseling" at a safehouse. — With Katherine Adraneda, Perseus Echeminada, Christina Mendez, Sheila Crisostomo