U.S. Custody of 6
Marines Unconstitutional:
Philippine Laws Prohibit Their Transfer Abroad
By Atty. Neri
Javier Colmenares
COUNSELS FOR THE DEFENSE 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.
BLOOD ON THEIR HANDS:
Women activists in a protest action in front of the U.S. Embassy in
Manila show their red-painted palms, symbolizing blood in the hands of
U.S. troops, as they call on the Foreign Affairs and Justice
Departments to take a stand on the recent rape of a Filipina by U.S.
Marine servicemen in Subic, Zambales.
PHOTO COURTESY OF GABRIELA |
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
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