Filipinos—members of the local LGBT community in particular—scored a victory this week when the Court of Appeals reaffirmed a lower court’s guilty verdict on US Lance Corporal Joseph Scott Pemberton for the killing of Filipino transgender woman Jennifer Laude in a motel room in Olongapo City in October 2014.
The Court of Appeals found the Marine’s self-defense plea “more imaginary than real.” It underscored LGBT rights when it noted: “Pemberton unabashedly plunged Laude’s head in the toilet [bowl] for the puerile reason that Laude pretended to be a woman. To our mind, placing Laude’s head inside a toilet [bowl] shows that Pemberton never thought of Laude as a human being, but as a fecal matter due to his sexual orientation.”
Pemberton’s trial itself was a triumph over the Philippines’ notoriously slow justice system, having met the one-year deadline prescribed by the PH-US Visiting Forces Agreement, beyond which the US government would be freed of its duty of judicial cooperation with the Philippine government. Also noteworthy was that Pemberton’s fellow Marine took the stand as a prosecution witness, and that while the trial was ongoing, the accused was held in Philippine custody inside an Army camp.
That last was a far cry from the case of US Lance Corporal Daniel Smith who was charged with raping Filipino woman “Nicole” in December 2005 in a moving van in Subic while other soldiers supposedly cheered him on. Smith, who claimed that Nicole had consensual sex with him, stayed in the US Embassy in Manila during the course of his trial. Finally convicted of rape in 2006, he was sentenced to about 40 years in prison and ordered confined at the Makati City Jail. Shortly after his conviction, however, he was plucked out of the jail by then US ambassador to the Philippines Kristie Kenney in the dead of night and returned to the US Embassy. The conviction would eventually be reversed and Smith released after Nicole recanted her testimony.
The Philippines’ loss of custody over Smith showed the puerile power of Philippine laws over erring US servicemen under the VFA, which serves as the basis for the entry of American troops into the country even after the renewal of the agreement governing US military bases in the country was voted down by the Philippine Senate in 1992.
And aye, there’s the rub. Despite a modicum of satisfaction over Pemberton’s conviction, there’s a niggling doubt that it would stave off similar cases of abuse by US military personnel—mainly because the VFA remains firmly in place. The 1999 agreement that governs the behavior of visiting American servicemen in the Philippines has, among other things, led to the revival of the sex trade in Zambales, Pampanga and other provinces and, with it, the drugs, gambling and other unsavory activities considered part of US soldiers’ “rest and recreation.”
Smith’s case served to illustrate how the VFA has eroded Philippine sovereignty by denying the Philippine government the power to exercise full jurisdiction within its territory. Aside from being exempt from taxes, charges, duties and visa regulation, US forces can evade accountability to the Philippine justice system for crimes committed on Philippine soil. How, it can be asked, is this different from the military bases agreement under which abusive US military personnel could simply slip out of the country to escape accountability? Remember the US Air Force sentry who shot a Filipino scavenger who, he claimed, he had mistaken for a pig.
So it is that while satisfaction can be expressed at the Court of Appeals’ upholding of the guilty verdict on Pemberton, there is the continuing concern over the VFA, the termination of which was among Sen. Miriam Defensor Santiago’s crusades when she was alive. This was the constant message of Santiago, who chaired the Senate committee on foreign relations: “Philippine sovereignty, as well as the rights and dignity of its citizens, suffered immensely during the years of … operation of the VFA. Let us assert our sovereignty and call for the total abrogation of this agreement.”
Indeed, it should not be forgotten that the VFA demonstrates how the Philippine Constitution’s guarantee of “equal protection before the law” is flouted through special privileges and rights given to visiting US troops.