POSTSCRIPT / November 6, 2005 / Sunday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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RP jurisdiction is clear in rape case against GIs

CLEAR JURISDICTION: The alleged rape by five US servicemen of a Filipina at the Subic Freeport last Nov. 1 falls within the jurisdiction of Philippine courts, according to the RP-US Visiting Forces Agreement signed in 1998.

The reasons for primary and exclusive Philippine jurisdiction, based on Article V of the VFA, are:

  1. Although the suspects are US military personnel, raping natives in the host country is not part of their official duty.
  2. At the time the alleged rape was committed, the servicemen were off duty, and were in fact on a night out for a good time after their participation in a joint military exercise.
  3. The victim is not a US national, but a Filipino.
  4. The alleged rape was committed and consummated entirely in the Philippines.
  5. The crime of rape is punishable under Philippine laws.
  6. Rape is not an offense against the security of the United States.

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CONCURRENT HOLD: Under Article V of the VFA (please see its text toward the end of this column), in cases of concurrent jurisdiction, one party may yield jurisdiction to the other.

But in this instance, with everything pointing clearly to Philippine jurisdiction, it would be unthinkable for local authorities to yield to the US.

Assuming the far-fetched situation that there may be concurrent jurisdiction, the case still has to fall within Philippine jurisdiction because:

  1. Although such errant behavior of US personnel is also covered by US military law, the victim is not an American.
  2. The crime was not committed solely against the property or security of the US, nor against the property or person of US personnel.
  3. The rape was not committed on US territory, a US military base or vessel or such place that enjoys extraterritoriality.

It cannot be shown to Philippine authorities — if they are wide awake and patriotic — that the alleged rape arose out of an act or omission done in performance of official duty.

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WHY THE TIMIDITY?: But it was within the agreed procedure in the VFA that the US immediately took custody of its military personnel in trouble. In fact, that is how a sovereign government should act in protecting its citizens.

It is all up to the Philippine government to ask within 20 days for their appearance at the proper forum — such as the prosecutor’s office in Olongapo City for investigation or in court if and when the case progresses to trial.

But until yesterday, it seemed that Philippine authorities are timid about asserting the government’s rights under the VFA. It is as if they have to tiptoe on eggs just because they are dealing with Americans.

It was a golden opportunity for President Gloria Arroyo to speak up, but she left to her spokesman the mumbling of apologetic and vague vows about seeing justice done.

Even Justice Secretary Raul Gonzales, who usually has a harsh word for almost every minor item disturbing his sensibilities, including comments of Kris Aquino, is suddenly tongue-tied.

Such timidity will not help dispel suspicion that the Philippine government itself will try, in stages, to (1) nip the charges by helping the Americans work out a settlement, (2) weaken the case and raise doubt that rape was committed and thereby justify an acquittal, (3) delay the proceedings so that the ONE-YEAR DEADLINE (!) in the VFA for completing litigation would overtake the case and the accused can then be shipped out beyond reach.

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READ THE TEXT: Anyway, to help everybody see the issue of jurisdiction clearly and to alert us of any attempt to sell out, we are reprinting here excerpts from Article V of the VFA on criminal jurisdiction:

“xxx 1. (a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.

“(b) United States military authorities shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction conferred on them by the military law of the United States over United States personnel in the Philippines.

“2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the Philippines, punishable under the laws of the Philippines, but not under the laws of the United States.

“(b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the United States, punishable under the laws of the United States, but not under the laws of the Philippines. xxx

“3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:

“(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United States personnel, except in cases provided for in paragraphs l (b), 2 (b), and 3 (b) of this Article. [Note: 3 (b) refers to offenses involving security of the US. — fdp]

“(b) United States military authorities shall have the primary right to exercise jurisdiction over United States personnel subject to the military law of the United States in relation to:

“(1) offenses solely against the property or security of the United States or offenses solely against the property or person of United States personnel; and

“(2) offenses arising out of any act or omission done in performance of official duty.

“(c) The authorities of either government may request the authorities of the other government to waive their primary right to exercise jurisdiction in a particular case.

“(d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline among their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular importance, it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities receive the United States request.

“(e) When the United States military commander determines that an offense charged by authorities of the Philippines against United States personnel arises out of an act or omission done in the performance of official duty, the commander will issue a certificate setting forth such determination. This certificate will be transmitted to the appropriate authorities of the Philippines and will constitute sufficient proof of performance of official duty for the purposes of paragraph 3(b)(2) of this article. In those cases where the Government of the Philippines believes the circumstances of the case require a review of the duty certificate, United States military authorities and Philippine authorities shall consult immediately. Philippine authorities at the highest levels may also present any information bearing on its validity. United States military authorities shall take full account of the Philippine position. Where appropriate, United States military authorities will take disciplinary or other action against offenders in official duty cases, and notify the Government of the Philippines of the actions taken. xxx

“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. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. 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. Also, the one-year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so.”

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(First published in the Philippine STAR of November 6, 2005)

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