Lopsided provisions

Once more, we are witnessing the sad and sorry spectacle of alleged “nationalistic” Filipinos and “human rights champions” riding on the crest of undue publicity given to the gory killing of a compatriot who turned out to be a “fake woman” or a “transgender.” As media continue to play up the story, one cannot help but entertain the thought that these people would not have been as “noisy” and indignant if there is no such kind of publicity.

Immediately coming to mind in this connection is another incident which happened almost nine years ago on Nov. 1, 2005 involving the rape of a 23-year- old Zamboangena visiting Olongapo City, also by a US military personnel who happened to be part of the American forces conducting a joint military exercise here. That incident also generated the same kind of indignant response from this bunch of activists raising the same issues being raised now about the Visiting Forces Agreement (VFA) between the US and the Philippines. But once the publicity regarding the incident died down, they became quiet already and did not pursue the issues anymore. So the problem remained and would eventually surface again like what is happening now.

This is a vicious cycle that will not end unless our government takes a clearer, more concrete and firm stand on the controversial features of said agreement. If the fear expressed at that time was properly addressed, away from the glare of publicity and from this publicity hungry noisy bunch of activists, the problems regarding the prosecution of the suspects and their eventual punishment would not have cropped up again.

The VFA provisions subject of the controversy seems to be clear enough. But it is only when  actual cases happen, that the ambiguities and controversies arise like what happened in 2005 and is happening now. Specifically they refer to the provision which says that “the custody of any US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with the US military authorities from the commission of the offense until completion of all judicial proceedings” (Section 5).

The issues here center on the separation of the “custody” of the offender from the “jurisdiction” over the offender. The US military authorities retain custody of the offending US personnel from the commission of the offense to the completion of all judicial proceedings. The words “judicial proceedings” refer to “any act done by authority of a court of law and every step required to be taken in any case by any party” (Black’s Law Dictionary p.1368). Considered in the light of this technical definition, “proceedings” definitely include all the steps and measures adopted in the prosecution or defense of the case including appeal.

At the snail’s pace our wheels of justice run, it is highly unlikely that the judicial proceedings will be finished in one year. Some cases even take 20 years to finish. And if we follow another lopsided provision of the VFA, the US “will cease to have any responsibility for the custody of the accused if the judicial proceeding is not terminated within a period of one year.” This means that the accused will practically be allowed to go anywhere and even away from the reach and jurisdiction of the court trying his case.

“Jurisdiction” and “custody” are different terms that may really be set apart. But the legal meaning of jurisdiction necessarily entails custody. “Jurisdiction” means the territorial limits of the sum total of a sovereign’s judicial power.” For a valid exercise of this power, the court must have lawful authority over the subject matter and over the person so that it can effectively render a particular order or judgment. Thus the court must have jurisdiction not only over the crime committed but also over the person accused of the crime.

Jurisdiction over the subject matter refers to the competency of the court to hear and decide a particular class of cases arising from the acts committed in violation of law or the rights of others. In this case the subject matter is the crime of murder allegedly committed by Pemberton against Laude. The jurisdiction of the court here depends on the territory where the alleged crime was committed which is undeniably in Olongapo City within the territorial limits of the Sovereign Republic of the Philippines. So, Philippine courts really have jurisdiction over the crime committed by Pemberton. In fact this is recognized by the VFA.

Jurisdiction over the person, on the other hand, is the power of the court to deal with the accused or the defendant and to render personal judgment against him. In criminal cases this jurisdiction is acquired by having custody of the accused through the service of the warrant of arrest against him or by his voluntary appearance in court. And this is where the VFA is again controversial.

Since custody remains with the US military authorities up to the end of the judicial proceedings, jurisdiction of the accused through his arrest ordered by the court cannot be acquired because the US cannot be compelled to surrender him. The Philippines can only ask the US “to make him available for any investigation or judicial proceedings by submitting a written request in 20 days.”

Obviously there is some incongruity here. Unless the court acquires jurisdiction over the person of the accused through his arrest, the trial and judicial proceeding cannot proceed. But under the VFA, such jurisdiction can be acquired only if the US accedes to our request to be submitted in twenty days. Apparently the jurisdiction of our court over the accused depends on the US which may or may not grant such request to turn over custody of the accused.

The supposed detention of Pemberton in the JUSMAG compound inside Camp Aguinaldo seemed to have eased this problem. But since he is still under the US custody, our court’s jurisdiction is still unresolved.

So these controversial and lopsided provisions of the VFA should once and for all be reviewed and amended with finality.

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