Custody

Then there is the politics of it all.

The brutal murder of Jennifer Laude by a US Marine could not have come at a more inopportune time. Oral arguments at the Supreme Court are about to be scheduled on several petitions filed regarding the Expanded Defense Cooperation Agreement (EDCA).

The EDCA is an executive agreement. It is not subject to the concurrence of the Senate, institutional partner of the executive branch in fashioning our foreign policy. It goes beyond the existing Visiting Forces Agreement (VFA) in that it allows prolonged use by US troops of our military bases.

Those opposing EDCA argue that this ultimately allows the Americans basing rights, nullifying the 1991 termination of the Military Bases Agreement. It creates a large loophole for prolonged hosting of US troops while evading the need for ratification a full treaty requires.

Therefore, the petitioners argue, EDCA yields rights to the US military that otherwise requires a proper treaty agreement. That has to be unconstitutional. Like the “juridical entity” or “substate” in the proposed Bangsamoro Basic Law (BBL), the EDCA is actually a non-treaty treaty.

While the lawyers have yet to argue over the constitutional issues, the debate might be swamped by sentimental public opinion.

Since the US bases were here, the issue of Philippine jurisdiction over erring American military personnel has been a salient point of debate. Under the lopsided Military Bases Agreement, the US military was accorded extraterritorial rights. It was the usual practice then that American servicemen were slipped out of the country to avoid prosecution. That was always a sore point.

A few years ago, under the framework of the VFA, a young Filipina woman claimed a US soldier raped her. American authorities insisted on keeping custody of the accused through the course of the judicial proceedings. Philippine authorities could do nothing to acquire custody of the accused since the US was granted rights under the executive agreement.

To be fair, the extraterritorial rights are reciprocal. If ever we send a contingent of troops to the US, we will get to enjoy the same extraterritorial rights as a “visiting force.” Of course, we will never send a battalion of Philippine Marines to the US, some of whom might end up raping or even murdering American women. Therefore, reciprocity exists only in principle.

The murder of Jennifer Laude is particularly chilling. After being mauled, the victim was drowned in the toilet bowl. Some have called this a hate crime perpetrated against a transgender.

While the public grew increasingly agitated over the crime, the authorities of both sides seemed to be dragging their feet.

Although the US Navy’s NCIS cooperated in the investigation of the crime and the identification of the perpetrator, the soldier was not brought before Philippine authorities. We rely only on reports the murderous serviceman is detained on board his ship. Fortunately, in this age of Facebook, we generally know what he looks like.

Should the US ship decide to sail out, however, the Philippine Coast Guard has no vessel impressive enough to stop it. It is unlikely the US Navy will attempt to run away with their felon. Such an act will provoke intense public agitation on the Philippine side, agitation that may be appeased only by unilateral abrogation of the VFA.

Philippine authorities, too, seemed to lack the sense of outrage that animates those in the streets. Of course, there is the usual inertia, the diffidence, characteristic of this administration.

Hours after the gruesome murder, no senior government official materialized at Jennifer’s wake to condole with the victim’s family. No responsible bureaucrat was sent to the scene to facilitate things. It was as if our government was wishing this was just a bad dream that would soon pass.

When the volunteer lawyers filed murder cases at the local court, they found they had no means to serve a copy of the complaint on the suspect who was safely on board a ship considered US territory. Unless Philippine authorities discovered yesterday their responsibility for assisting its citizens seeking justice, Jennifer’s family and friends intend to march on the US Navy vessel today to serve a copy of the complaint.

Philippine authorities are, understandably, trying to tread as lightly as possible in going after an American soldier. Manila desperately wants US forces to be constantly present in our territory, serving as some sort of scarecrow to shoo away China’s menacing moves in the disputed waters.

National security considerations notwithstanding, our officials must show a little more assertiveness in acquiring custody of the suspect if only to appease an agitated public. Failure to demonstrate assertiveness will convince many that both the VFA and the EDCA are lopsided agreements that offer ordinary Filipinos no protection against crimes perpetrated by US troops.

The constituency for both agreements could be significantly eroded. An agitated public could influence the High Court’s reading of the constitutionality issues afflicting both agreements.

The old grievances, the ones that led to the perception that the termination of the Military Bases Agreement was a heroic act, could well be revived. The ghosts of many past abuses will be resurrected from the graves of history.

It is significant that Jennifer Laude is transgender.

The LGBT community is a rising constituency, increasingly vocal regarding many social issues. It is a, well, noisy bunch that will embrace this victim and demand justice — against whatever national security gobbledygook officialdom may mutter.

This rising constituency is not only national, but global. It is the sort of constituency that will elevate a private crime of passion into a flashpoint for international mobilization.