Focus on the killing

The Inquirer headline said it all: “The issue is the killing.” Olongapo City Prosecutor Emilie Fe de los Santos correctly reminds us: “What is clear is that a person is dead. … Let’s put an end to the issue that there is bias in the gender. There’s no gender issue here. The issue is: Somebody got killed.”

The prosecutor is correct in refocusing the debate away from two issues that threaten to complicate the investigation: the “gender issue” that she referred to, and the political issue concerning the mendicant posture of the Philippines under the Visiting Forces Agreement. These two issues distract us from the fundamental principles that remain unchallenged.

First, the crime is punishable under Philippine law. Whether the accused is an American or not, whether he is civilian or military, or whether the victim was straight, gay, transgender, or transsexual, the fact is that a person was killed on Philippine soil. The applicability of the Revised Penal Code has nothing to do with the military status of the accused or the gender identity of the victim. Rather, it has all to do with the place of the commission of the crime. That principle is uncontested and incontestable.

Second, it is the same with the power of Filipino prosecutors and courts to try the case. The VFA itself states: “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.”

Third, the only point at which the VFA enters the picture is on the issue of custody over the suspect, PFC Joseph Scott Pemberton. The VFA states that custody “shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.” The only obligation of the United States is to make him available “without delay … for any investigative or judicial proceedings.”

These arrangements have now been made: Pemberton’s physical transfer from a US Navy ship, the USS Peleliu, to Camp Aguinaldo while technically remaining under US legal custody. This is significant in itself. We’ve come a long way from those days when erring US servicemen at Clark or Subic would be spirited away to Honolulu to escape the reach of Philippine courts, with hapless Filipino prosecutors left scratching their heads.

For sure, these are special arrangements, and it is not surprising that many have cried “double standard.” But we have had to face similar dilemmas in the past when government officials arrested for plunder ended up at the Veterans Memorial Medical Center, a Sandiganbayan basement jail, or guesthouses in military camps. This time, the risks entailed by “ordinary” detention in a Philippine jail would have international and diplomatic consequences for the country. Moreover, those who would ask for the standard of “national treatment”—that is to say, to treat Pemberton as shabbily as we treat our own countrymen—should note the VFA clause that says we must complete the trial within one year after which the United States is released from its obligations. The family of any other Filipino victim killed by a fellow Filipino would have to wait much longer for justice.

Prosecutor De los Santos is correct in referring to a “killing” rather than a murder or homicide. That would have been premature because the question of what crime was committed is precisely what her investigation is supposed to answer. On the other hand, she might have prejudged some matters there when she excluded all gender issues altogether, since the transgender identity of the victim is the metaphorical elephant in the room in the public debate on the killing of Jeffrey “Jennifer” Laude.

Already, private prosecution counsels remind us that the VFA allows for Philippine custody “in extraordinary cases,” and that the victim’s transgender identity is one such case.

Laude’s family has now asked for DNA samples that can link Pemberton to the crime. After all, if the semen samples already with the prosecution matches the DNA of Pemberton, the stage is set for a conviction.

If the United States is truly serious about its obligations under the VFA, it must forthwith comply with the request. The VFA provides for the duty to “assist [and] cooperate … in the collection and production of evidence [including] the delivery of objects connected with an offense.” That is just about as clear as it can get. If the United States invokes the VFA to secure custody over Pemberton, it must respect the agreement and offer the DNA samples to the Filipino prosecutors.