Who has legal custody of US Marine Private First Class Joseph Scott
Pemberton, the suspect in the killing of Filipino transgender Jeffrey
“Jennifer” Laude?
The question cropped up yesterday as the Philippines and United
States are now at loggerheads over who has the legal custody of
Pemberton – whom President Aquino said has been getting “special
negative treatment” or even “worse treatment” than a Filipino implicated
in a similar crime.
The US embassy in Manila insisted that Pemberton has remained with
their custody despite his transfer to a detention facility inside Camp
Aguinaldo in Quezon City.
But Justice Secretary Leila de Lima yesterday stressed that the
transfer of Pemberton to Camp Aguinaldo was a signal that the
19-year-old US serviceman was already put under custody of Philippine
authorities, adding more to the confusion of the custody issue of the
murder suspect.
De Lima further said that the Philippine government may reject any
request of the US government for the custody of Pemberton, despite a
provision in the Visiting Forces Agreement (VFA) that requires the
transfer of US servicemen facing criminal investigation and indictment
in the country to the custody of the US government upon their request.
“(The) Philippine government has also the discretion to insist
further on his continued custody by Philippine authorities, by citing
compelling or extraordinary reasons,” she told reporters in an ambush
interview.
De Lima’s statement was contrary to the earlier statement of
Undersecretary Jose “JJ” Justiniano that the US government may take
Pemberton into its custody under the VFA even while he would be under
the jurisdiction of the Philippine authorities.
Justiniano, one of the defense lawyers of the four US Marines who
stood trial for the 2005 rape of Suzette Nicolas alias Nicole in Subic,
cited Article 5, Section 6 of the VFA, which provides that “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.”
Pemberton was transferred to a facility inside the Camp Aguinaldo
yesterday under joint security by US and Philippine authorities as
agreed upon by officials by both sides. He was airlifted by a US
military helicopter from USS Peleliu that is docked in Subic Bay and
accompanied by Filipino and American officials.
Members of the media were kept at a distance when the aircraft
arrived around 8:35 a.m. in Camp Aguinaldo. But Pemberton, who was in
handcuffs and wearing an orange shirt, was seen being taken to the
Mutual Defense Board-Security Engagement Board (MDB-SEB) facility inside
the camp.
Armed Forces of the Philippines (AFP) Chief of Staff Gen. Gregorio
Catapang oversaw the transfer of Pemberton to Camp Aguinaldo. Also
present were retired Gen. Eduardo Oban, Presidential Commission on the
Visiting Forces Agreement (VFA) executive director; and Col. Mike Wylie
of the Joint US Military Advisory Group (JUSMAG).
“At around 8:45 a.m., the Armed Forces of the Philippines (AFP)
received Pfc Joseph Scott Pemberton from US authorities,” Catapang later
said in a press conference.
“He will be detained at the MDB-SEB facility inside the camp while the preliminary investigation is ongoing,” Catapang added.
The AFP chief described Pemberton’s detention facility as a 20-foot
container van installed with iron bars and an air-conditioning unit. He
will be sleeping in military type cot-bed.
Asked why Pemberton’s detention facility has to be airconditioned,
Catapang said, “Kailangan kasi container van yun… mamamatay siya dun . .
. ma-suffocate siya… Nakaselyado ‘to, mamamatay ka dito pag hindi ka
mag-aircon.”
For De Lima, the transfer was a signal that the 19-year-old US
serviceman was already put under custody of Philippine authorities.
She even said the VFA commission had quietly worked for the transfer through diplomatic channels.
“It just showed that they (US government) willingly gave Pemberton to
our custody while waiting for the results of the PI (preliminary
investigation). Their main commitment under the VFA is to ensure his
availability and accessibility for purposes of investigation and
judicial proceedings,” she explained.
At the Senate hearing on the death of Laude, Foreign Affairs
Secretary Albert del Rosario said the Philippines unquestionably enjoys
the primary right to exercise jurisdiction over offenses committed by
United States servicemen in the country, save for offenses solely
against the security, property, or person of the US government and
personnel.
Del Rosario pointed out that unlike in previous times when the
country was hosting US bases, the Philippines now has the authority to
prosecute US servicemen in the Philippines, to try them in the
Philippines, and if convicted, to jail them in the Philippines.
President Aquino rejected criticisms that the government was treating Pemberton with kids gloves.
“We are handling it with kid gloves? In fairness, given similar
conditions, a Filipino citizen accused of this crime would probably have
the same treatment,” the President said at a media forum in Ortigas.
“He is not being treated with kid gloves and the Americans, may I
reiterate, are conforming to the treaty wherein they have to make this
person and others available for both the investigative
and the judicial processes that are forthcoming,” he added.
“You’re saying ‘special treatment.’ He’s getting a special negative treatment in effect,” he said.
“He is getting a treatment that is less than that accorded by our
system to a Filipino accused of a similar crime. And then you come and
tell me he’s getting a better treatment? It’s a worse treatment,” Aquino
added.
The decision to detain Pemberton in the facility was mutually agreed
by both governments of the US and the Philippines through its embassies,
Catapang said.
House Deputy Majority Leader and Citizens Battle Against Corruption
(CIBAC) party-list Rep. Sherwin Tugna welcomed the US government’s move
to turn over Pemberton, saying it only shows that the Obama
administration “respects the Philippine law and sovereignty.”
Kabataan party-list Rep. Terry Ridon said the government should
insist for full custody of Pemberton, as he asked the AFP not to grant
“special treatment” to the beleaguered US serviceman.
Catapang stressed that Pemberton’s detention in Camp Aguinaldo is only temporary pending order from the court.
While at Camp Aguinaldo, two US Marine personnel and four AFP Military Police (MP) personnel will be tasked to guard Pemberton.
“It will be joint security… inside the container van there will be
one US soldier and then outside the container van there will be another
US soldier,” said Catapang.
Yesterday afternoon, Laude’s sister Marilou and German fiancé Marc
Sueselback barged into Camp Aguinaldo in a bid to see Pemberton by
climbing the 10-foot fence. Though the two trespass the military camp,
soldiers exercised maximum tolerance.
At the Senate, Sen. Miriam Defensor Santiago, chairman of the Senate
Foreign Relations Committee and the Legislative Oversight Committee on
the VFA (LOVFA), renewed yesterday her call to scrap the 15-year-old VFA
on the ground, among others, of “gross disparity” in the provisions on
jurisdiction and custody.
In a statement opening the more than two-hour public hearing by her
committee, Santiago bewailed the “iniquitous” treatment by the VFA of
Philippine interests.
“The failure to produce the body of Marine Private First Class Joseph
Scott Pemberton before the Olongapo City Prosecutor (last Tuesday) is
already an indication that the US is not in good faith, a reflection of
the lopsided attitude of the VFA,” she said.
Del Rosario told Santiago that the turn over by the US government of Pemberton was a result of the DFA’s note verbale.
