POSTSCRIPT / January 3, 2006 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Big Lie: GIs in rape caseĀ are detained on RP soil

MOMENT OF TRUTH: Today is a red-letter day to watch in Philippine-American relations.

If events unfold as scheduled in the processing of rape charges against four off-duty US servicemen in Olongapo City, the Philippines will emerge today either as a truly sovereign nation or a puppet of the United States.

One focus of my attention is the Filipino driver of the van used in the snatching and raping of a Filipina vacationing in the Subic Bay Freeport last Nov. 1. He has been included as co-accused of the US servicemen.

The public prosecutor is set to file the information today in court. If the judge concurs with the finding of probable cause, he will issue within 10 days arrest warrants against the accused Americans and the Filipino.

The defense lawyers are expected to move to delay proceedings to prevent the court’s immediately taking jurisdiction of the case and, if the complaint is given due course by the court, to prevent the early arraignment of their clients.

Rape being a heinous crime and in this case attended by aggravating circumstances, granting of bail or the release of the accused Americans to US authorities on recognizance might be difficult to justify as there appears to be a constitutional prohibition on that.

* * *

FORK ON THE ROAD: Going straight to my point:

1. If the court gives due course to the complaint but grants bail — Will the Americans go back to the JUSMAG (Joint US Military Advisory Group) premises in the US embassy where they have been detailed since the complaint was filed?

2. If bail is denied — Will the Americans be detained in a Philippine jail like the Filipino driver (assuming he can be located and arrested or is not suddenly found dead)?

This is the historic fork on the road where a political, more than a legal, decision will have to be made by us Filipinos.

We cannot detain a Filipino, who is actually only an accessory, in a Philippine jail, while his American co-accused stay in the air-conditioned comfort of JUSMAG or embassy premises with all the stateside amenities of home.

Where the judge orders the Filipino driver detained, that is where he should also send the Americans.

If he, or we, cannot perform that basic act of justice, we would be the laughing stock of the watching world.

* * *

CLEAR PREJUDICE: To avoid this fork on the road, there would be Herculean efforts to prevent or delay the court’s assuming jurisdiction over the case.

Under normal conditions, a rape case such as this one would be taken over by the court as soon as the prosecutor cites the probable cause and files the information. But this is no ordinary case.

One avenue is for the defense to ask that the preliminary investigation report be reviewed by the Department of Justice. But this is problematic.

Alas, Justice Secretary Raul Gonzalez has been talking his head off commenting on the case. His clear pro-American bias, reflected in his remarks, disqualifies him from ruling on an appeal for him to review the prosecutor’s finding of probable cause.

(Somebody, maybe his boss and benefactor President Gloria Arroyo, should tell the Justice Secretary that since he holds a sensitive position, he must refrain from commenting on matters that are being processed by his subordinates and that may just be elevated to his office on appeal.)

* * *

VFA FLAW: Much has been said about a provision in the RP-US Visiting Forces Agreement allowing US authorities to take custody of American personnel running afoul of Philippine laws.

Secretary Gonzalez himself has pointed this out, as if on a race to beat the defense lawyers in justifying the accused servicemen’s being kept at the US embassy in the meantime.

To make official his preferred role as defense counsel, Mr. Justice Secretary should resign right away and apply at the US embassy to be retained.

Yes, there is this unfortunate provision in the VFA on custody and criminal jurisdiction. But that provision should not be there for the simple reason that it runs counter to at least the spirit of the Constitution.

Section 13 of Article III (Bill of Rights) says: “All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law….”

But rape is classified as a heinous crime potentially punishable by death, a fate more serious than the reclusion perpetua (30 years in prison) that Section 13 mentions. This argues against the possible granting of bail or a release on recognizance as provided in the VFA.

The release of the Americans to the custody of US authorities is on recognizance, which Section 13 excludes from the general rule for the reasonable granting of provisional liberty.

* * *

NO U.S. RATIFICATION: Secretary Gonzalez said the VFA (and its controversial provision on erring US personnel being released on recognizance to US authorities) must be honored since the pact is part of the law of the land.

Now that the Secretary mentioned that generally held precept that treaties properly entered into become part of the law of the land, let me cite to him Section 25 of Article XVIII (Transitory Provisions) of our Constitution that says:

“After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.(Emphasis supplied)

This Section should be clear enough even for Cabinet officials awaiting retirement. It says that an agreement allowing foreign military bases, troops, or facilities in the country must be concurred in by the Senate “and recognized as a treaty by the other contracting State.”

Somebody has to tell Secretary Gonzalez that the VFA he is citing has NOT been ratified by the other contracting party, namely the United States, as a treaty.

* * *

STOP CITING VFA: This failure or refusal of the US to ratify the VFA as a treaty while we seem to want to recognize it as a treaty violates the basic principle of reciprocity in the relations of supposed friends and allies.

The VFA cannot be used yet as basis for the basing of foreign forces on Philippine soil or as legal argument for granting bail to erring US servicemen or releasing them on recognizance to their superiors or their government.

Besides, as pointed out earlier, the VFA is in violation of Section 13 of Article III of the Constitution because it allows the release on recognizance of criminally accused US personnel.

If only because of those two points — the VFA probably being unconstitutional and its not being recognized by the US as a treaty — the Justice Secretary should refrain from citing that defective agreement as the legal justification for whatever violation of the rules of criminal procedure they have in mind doing.

For his own protection, Secretary Gonzalez should stop talking like a lawyer of the US personnel accused of raping a Filipina. The GIs have more than enough counsel already.

* * *

BIG LIE: Before we drop the subject, we should also remind the Justice Secretary that under the principle of extraterritoriality, the JUSMAG and the US embassy are, in fact and in law, US territory.

The US servicemen’s being in the JUSMAG or embassy premises is the same as their being in San Diego or New York. They are in US territory.

We should tell our countrymen that it is NOT TRUE that the accused servicemen are in the Philippines. No, those GIs are on American soil.

If we have to discriminate in a situation where several persons are involved in some violation of Philippine laws, our bias should not be against our own countrymen in favor of visiting, good-timing foreigners. Where we detain the Filipino driver, that is where we should also send his co-accused US servicemen.

Let us apply the law evenly. Let us be fair.

* * *

(First published in the Philippine STAR of January 3, 2006)

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