Still no answer from US on Tubbataha grounding

MANILA, Philippines - The US government has not answered a petition before the Supreme Court (SC) for the prosecution of two US Navy officials and the crew of a US Navy minesweeper for the damage to Tubbataha Reef in Palawan almost a year ago.

An SC insider told The STAR the petition is a test case, and they do not know if the US will invoke international treaties or laws or even pay attention to it.

Discussion on the issue of the SC’s jurisdiction was held when they decided to seek comments from the US government, a member of the court who refused to be named due to pendency of the case said.

The insider said the US embassy has not responded to the SC request for comment on the petition of two Catholic bishops, environmentalists, activists and lawyers last year   naming US Seventh Fleet commander Scott Swift and USS Guardian commanding officer Mark Rice among the respondents.

In June last year, the SC sent   the embassy a minute resolution requiring answers from Swift and Rice to the writ of Kalikasan petition.

The insider said the SC decided to send the respondents, through the US embassy, a letter instead of an order.

The request was sent to the embassy when Harry Thomas Jr. was the US ambassador. 

Ambassador Philip Goldberg has since replaced Thomas.

UP law professor Harry Roque Jr. told The STAR he agrees with the opinion of the insider that the SC has no jurisdiction over the US Navy respondents.

“They will only say they have absolute immunity and that’s end of it,” he said.

US troops have absolute immunity from local jurisdiction under customary public international laws, he added.

In July last year, the Office of the Solicitor General (OSG) had submitted a consolidated answer on behalf of Malacañang, military officials   and several Cabinet members   also named respondents in the case.

The OSG asked the SC to dismiss the petition and deny the relief sought simply because the incident was a “fait accompli (an irreversible situation).”

The OSG said the USS Guardian “has the right of innocent passage” and that the Visiting Forces Agreement (VFA) should not be raised as an issue.

“Because there were no joint military exercises during the grounding incident (Jan. 17, 2013), then the VFA does not apply,” the OSG said.

The OSG also said petitioners failed to establish a clear relation between the VFA and the environmental issues raised in their plea to justify the relief being sought from the SC.

The SC cannot intervene in the process involving damages and claims against the US government because claims processing resides exclusively with the executive department, the OSG added.

In a statement, Salvador France, vice chairman of petitioner fisherfolk alliance Pambansang Lakas ng Kilusang Mamamalakaya ng Pilipinas (Pamalakaya), said the incident merits the filing of criminal and other appropriate charges against the officers and crew of the USS Guardian and the abrogation of the VFA and the Mutual Defense Treaty.

“The US government must respond to and account for their crimes against the people and the environment,” he said. 

France said the Department of Justice (DOJ) did not act on their request in February last year for the criminal investigation of the American respondents.

“It appears to us that Secretary Leila de Lima is not keen to charge the rapists of the UNESCO declared heritage park. In the first place, she did not do anything to stop the US prime time rapists of Tubbataha from leaving the country,” he said. “All they want is to call it quits with Washington DC for the sum of P58 million. The future of the letter of complaint we filed at DOJ urging Secretary de Lima to extradite the officials and crews of the American minesweeper has no future and will forever remain in oblivion.”

The SC has not yet ruled on the petition filed in April last year.

The petitioners are Bishop Pedro Arigo of Puerto Princesa, Palawan; Bishop Deogracias Iniguez Jr., Bishop-Emeritus of Caloocan; Frances Quimpo, Clemente Bautista Jr. of Kalikasan-Pne; Maria Carolina Araullo and Renato Reyes Jr. of Bagong Alyansang Makabayan (Bayan); Bayan Muna Rep. Neri Colmenares; Roland Simbulan of Junk VFA Movement; Teresita Perez; Kabataan party-list Rep. Raymond Palatino; Peter Gonzales of Pamalakaya; Giovanni Tapang, Agham; Elmer Labog, Kilusang Mayo Uno; Joan May Salvador, Gabriela; Jose Enrique Africa; Theresa Concepcion; Mary Joan Guan; Nestor Baguinon, and public interest lawyer Edsel Tupaz.

They sought a fine for the US that is 12 times the initial estimate of the Philippine government.

The groups also asked the SC to assess the damage caused to the reef by the grounding of the Guardian.

They also sought a determination of the fine to be imposed on the US Navy and the prosecution of the officers of the Guardian.

Petitioners urged the SC to order a stop to US war games and port calls of US Navy ships in the absence of clear guidelines on environmental protection under the VFA.