This story was taken from Bulatlat, the Philippines's alternative weekly newsmagazine (www.bulatlat.com, www.bulatlat.net, www.bulatlat.org).
Vol. V, No. 40, November 13-19, 2005


 

U.S. Custody of 6 Marines Unconstitutional:
Philippine Laws Prohibit Their Transfer Abroad

By Atty. Neri Javier Colmenares
COUNSELS FOR THE D
EFENSE OF LIBERTIES (CODAL)
Posted by Bulatlat

Pres. Gloria Macapagal-Arroyo will be committing a culpable violation of the 1987 Constitution if she allows the United States to continue exercising absolute custody over the six US Marines accused of rape and transfer the accused to Okinawa, Japan. Under Sec. 17 and Sec. 5, of Art. VII of the Constitution, the President is required to defend the Constitution and execute all laws faithfully.

Under Section 13 of the 1987 Constitution, anyone who commits a crime in the Philippines cannot post bail or be released on recognizance when they commit a capital offense and when the evidence of guilt is  strong.  Should a Philippine court find the evidence of guilt strong against the US soldiers, they have to be placed in Philippine prison like everybody else in similar circumstances. Rape is a capital offense and since the rape was allegedly committed by two or more persons, in this case by six marines, it is punishable by death under Sec. 11 of RA 7659 or the heinous crimes law. Allowing the accused to remain in US custody whether here or abroad is releasing them on 'recognizance' to the US government, clearly not allowed under the Constitution. The Visiting Forces Agreement, or any treaty for that matter, cannot trump the 1987 Constitution.

The US is in fact violating the Visiting Forces Agreement (VFA) by its insistence on having absolute custody of the accused as provided in Art. II (VFA):

Art. II states, “It is the duty of the US personnel to respect the laws of the Republic of the Philippines x x x The US Government shall take all measures within its authority to ensure that this is done.”

In fact, presuming the VFA to be constitutional, the current custody exercised by the United States is already patently illegal, without the US filing an official request for the custody of the accused as required under Art. V, par. 6 of the VFA:

Sec. 6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings... In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one-year period will not include the time necessary to appeal.

Even if a formal request has been filed, the initial custody of the US becomes illegal if the Philippines will refuse such a 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.

By recognizing the right of the US to maintain custody of the accused, President 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 charged and the person of the accused. Unless the accused is arrested or surrenders to the authorities, no court can try the rape case. Trial in absentia is prohibited in the Philippines before the accused is arraigned.  The VFA therefore does not vest criminal jurisdiction over US soldiers without the cooperation of the United States, unless we exercise the right to refuse the “request” under par. 6 of the VFA.

It must be noted that the US can immediately imprison any Filipino soldier who commits a crime in US territory, and may waive said right only upon “request” of the Philippine government. Article VIII, Sec. 2 of the VFA Counterpart Agreement in the US (VFA Part II) merely requires the US government to request US “authorities” detaining a  Filipino to release that Filipino to Philippine custody:

Sec. 2  (VFA II) x x x  The (US) Department of Defense will ask the appropriate authorities in the United States having jurisdiction over an offense committed by Republic of the Philippines personnel to waive  in favor of the Republic of the Philippines their right to exercise jurisdiction, except in cases where the Department of State and the Department of Defense, after special consideration, determine that United States interests require the exercise of United States federal  or state jurisdiction.

Since the US maintains the right to refuse the Philippine 'request' for custody, the Philippines should also do the same under the terms of the counterpart agreement. Any act of the US therefore to transfer the accused outside Philippine territory immediately clashes with the Constitutional rights of the victim, legal provisions on bail and the equal protection clause.

Furthermore, the Constitution is violated if the US allows the accused to go abroad should the case drag on for more than a year, especially since they have the opportunity and means to flee.  Many of the 108 rape cases committed by US soldiers from 1983 to 1988 were dismissed due to the absence of the accused. This disparity is magnified by the fact that arrested overstaying Filipinos in the US are immediately detained and deported like cattle for not having a visa, while the accused here stay in comfortable rooms in their embassy or hotels.  Lastly, Filipino officials who intervene and defend the US position, like Department of Foreign Affairs (DFA) Undersecretary Zosimo Jesus Paredes, are not only culpable of violating Sec. 1, Art. XI of the Constitution on patriotism, but may also be charged with obstruction of justice.

The Visiting Forces Agreement is unconstitutional. It not only violates the 1987 Constitution's provisions under Art. II on deployment of foreign troops, nuclear free Philippines and provisions on sovereignty, among others, but also violates the Constitution's provisions on criminal offenses. By not asserting Philippine sovereignty and jurisdiction over the accused, in violation of the Constitution, President Arroyo has added one more ground for her impeachment and one more item in the list of crimes she has committed against the Filipino people. Posted by Bulatlat

 

© 2005 Bulatlat  Alipato Publications

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