"We will bring the matter before the Supreme Court," Evalyn Ursua, the complainant’s personal lawyer, told The STAR in an interview.
Their petition for certiorari will seek to correct a lower court’s ruling that the treaty did not violate the Constitution, including the provisions that require Philippine courts to finish the prosecution of any case involving American soldiers within one year and stating which government should have jurisdiction over the accused.
Ursua said the petition will also ask the high court to issue alias warrants of arrests against accused US servicemen Daniel Smith, Dominic Duplantis, Chad Carpentier and Keith Silkwood.
Ursua, of the Women’s Legal Bureau, insisted that the Philippine government has the right to prosecute the four US Marines without being pressured for time, and has the authority to take them into custody.
The four accused are under the custody of the US Embassy, which decided not to surrender them to the Philippine jail system.
Ursua said the US government itself violated the VFA when it issued a supposed gag order on Navy Criminal Investigation Service (NCIS) agents who were supposed to testify before the Makati City regional trial court (RTC).
She noted that Makati RTC Branch 139 Judge Benjamin Pozon, who presides over the trial, had even ordered the Department of Foreign Affairs (DFA) to explain before the court why the agents were barred from taking the witness stand on grounds of diplomatic immunity.
"The DFA has been very quiet in explaining what the government is doing. I think they have no face to show in the hearing," Ursua said.
Nevertheless, the complainant’s private and government lawyers are confident that the rape trial will be finished by August because Pozon would not want to waste any time.
The court, in a ruling last week, declared the start of the one-year period during which the four accused can be prosecuted underway as of Nov. 27 last year, which means that the prosecution must finish presenting its case by Nov. 27 this year.
Ursua said they — as far as the presentation of prosecution witnesses is concerned — are still on schedule since five of the 40 witnesses have already been presented.
The victim, whose identity is being protected, will take the witness stand herself in the latter part of the trial.
So far, the prosecution’s witnesses have testified that Smith carried the victim out of the Neptune Club at the Subic Freeport Zone in Zambales, placed her in a nearby Starex van where the rape allegedly took place, and eventually dumped her in a parking lot sometime between 11:00 p.m. and 1:00 a.m. on Nov. 1 and 2.
Beginning June 19, the hearings on the Subic rape case will be held on Mondays, Tuesdays, Thursdays and Fridays, from 1 to 5 p.m.
On the other hand, government sources said yesterday that the US Embassy in Manila cannot invoke diplomatic immunity for two US Navy investigators to stop them from testifying because the DFA has not issued them accreditation for diplomatic status in the country.
"What they are trying to do is invoke diplomatic immunity in general. They cannot invoke diplomatic immunity for at least two US Navy investigators. They do not have diplomatic status," a source said.
Another source added that they learned that the DFA Office of Protocol has not issued accreditation for two US Navy investigators.
"If they do not have accreditation by the DFA they cannot invoke diplomatic immunity. We found out that the two investigators do not have accreditation. It is the DFA Office of the Protocol that issues accreditation so it is clear they do not have diplomatic status," the source said.
They said the US Embassy has "specific obligations" under the VFA to cooperate in such investigations.
"Even if they have diplomatic accreditation, we would like them to testify. We do not want a miscarriage of justice," the source said.
On Thursday, the embassy defended its decision not to allow US Navy investigators to testify in the rape trial by invoking immunity under the Vienna Convention.
The NCIS "preliminary report was provided to the Office of the City Prosecutor in Olongapo and has been discussed in court," the embassy said. "However, there are issues of diplomatic immunity under the Vienna Convention concerning the appearance and testimony of diplomatic personnel in court about which the US Embassy and the DFA are currently communicating."
The US government said it will continue to cooperate and work with the Philippines through the completion of the judicial proceedings.
"Our two governments are in frequent communication about this issue. The US remains committed to seeing that justice is served, and looks forward to a fair and impartial process that can provide for a just outcome," the embassy added.
Sources said the DFA has given up on the Philippine government’s request for custody over the Marines and believe that the custody issue is already "dead."
The DFA sent another note verbale to Washington through the embassy to ask for the continuation of dialogue for the custody of the accused despite its rejection of Manila’s request last January. — With Pia Lee-Brago