Lawyers on Subic rape case:
`Without Warrant, Trial of Four US Soldiers Cannot Proceed'

With the failure to serve the warrant of arrest to the four U.S. Marines accused of raping a Filipino woman, just where is the Subic Rape Case heading? Lawyers said that it is going nowhere and as early as now, justice for the rape survivor is being denied.

BY DABET CASTAÑEDA
Bulatlat

AGAINST `BALANCE PISTON': Suara Bangsamoro and Bayan Muna members hold anti-Balikatan protest in Kidapawan City last Jan. 16. PHOTO COURTESY OF SUARA BANGSAMORO

The Subic Rape Case is going nowhere.

Two lawyers denounced the City Prosecutor of the Olongapo Regional Trial Court (RTC) and the Department of Justice (DoJ) for failing to serve the warrants of arrest to the four U.S. soldiers accused of raping a Filipino woman inside the Subic Bay Freeport in Olongapo City (126 kms. from Manila) in November last year.

“How does the court intend to proceed?” asked Atty. Evalyn Ursua of the Women's Legal Bureau (WLB). She said serving the warrant of arrest is an "essential and indispensable requirement" to have jurisdiction over the "person of the accused." It is only when the warrant is served and officially received by the accused that the court can exercise jurisdiction in a criminal case. The court can also proceed to arraignment, she added.

In Philippine laws, rape is classified as a crime against persons (Sec 2, Republic Act No. 8353 or the Anti-Rape Law of 1997) or a public crime. It is a criminal case punishable by life imprisonment or the death penalty, depending on the gravity of the circumstances of the case.

On the other hand, Counsels for the Defense of Liberties (CODAL) Spokesperson Atty. Neri Colmenares said in a statement that unless the accused surrender to the court or are arrested, no court could try the rape case for failure to have jurisdiction over the accused. He added that trial in absentia is prohibited in the Philippines before the accused is arraigned. “Should the accused fail or refuse to appear before the Olongapo RTC, the criminal case cannot prosper.”

Custody required

Through a note verbale, the U.S. rejected last January 16 the Department of Foreign Affairs' (DFA) request for custody of the four accused U.S. soldiers.

Under the 1999 U.S.-RP Visiting Forces Agreement (VFA), the U.S. gets automatic jurisdiction over erring U.S. soldiers and the Philippines needs to make a formal request for jurisdiction over them.

Olongapo RTC (Branch 73) Judge Renato Dilag, to whose sala the case would be tried, told the media however that the failure to serve the warrants of arrest should not delay the case. He claimed that the defense and prosecution lawyers accepted his position on the matter, adding that the defense lawyers made a commitement to present the accused whenever they are required in court.

However, if the four accused U.S. soldiers remain under the jurisdiction of the U.S. Embassy in the Philippines, Ursua said they could never be “deemed to have surrendered” because “we do not have jurisdiction over the U.S. Embassy.”

Furthermore, Ursua said it is imperative that the accused be in the court’s custody. Although it is not necessary that the accused be in the physical custody of the court, she said that the four U.S. soldiers should be detained by Philippine authorities whether in municipal or regional jails or any designated detention centers.

She added that as a matter of procedure, the Philippine authorities or law enforces (in this case, the police) should report to the court that the warrants have been served, after which the accused will be detained. “That’s the only time the court could say it has acquired jurisdiction over the accused,” Ursua said. “In this case, the court has not acquired jurisdiction over the accused because it has not served the warrants.”

Ursua said that the case could be archived because it could not proceed to arraignment.

At the mercy of the U.S.

“The VFA has rendered the anti-rape law useless,” Ursua said. “It cannot be enforced because the arrests have not been made.”

She said that the country may have a very good law that criminalizes rape but it cannot be enforced because government officials insist on complying with the VFA. As a result, Ursua said that the country is deemed to be “at the mercy of a foreign government complying with the provisions of a stupid agreement.”

Jurisdiction should not be disassociated with custody because the latter is essential in the effective exercise of jurisdiction, Ursua added.

No to VFA and proposed replacement

Meanwhile, the progressive women’s group Gabriela assailed the government for implying to replace the VFA with the SOFA (status of forces agreement) wherein which the host country has provisions for custody of any U.S. servicemen accused of a crime.

Gabriela Secretary General Lana Linaban said that although her organization calls for the abrogation of the VFA, it does not want any military agreement to replace it.

“Ang pagbabasura sa VFA ay hindi dapat itali sa isyu ng custody lamang,” (The reason for the junking of the VFA must not only be the issue of custody.) she said, clarifying that the VFA's repeal will not put a stop to crimes against women and children and other human rights violations.

Apart from being one-sided, Linaban said the VFA and other military agreements with the U.S. consist of provisions that primarily serve U.S. interest in using Philippine soil as its launching pad for its “terrorist attacks.”

“Ang VFA ay lalong nagbubukas sa ating mamamayan sa iba’t-ibang pang-aabuso ng U.S.,” (The VFA will further make our people vulnerable to various abuses of the U.S..) she said.

Ursua, however, warned that the nullification of the VFA now could also work against the Subic Rape Case. She said it is possible for the U.S. government to ship out the four accused once the VFA is abrogated. This situation magnifies the urgency to serve the warrants of arrest to the four U.S. soldiers so that the court can have immediate jurisdiction over them. Bulatlat

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