AFP protests too much

It’s like shooting the messenger if you don’t like his message, and then saying it just had to do with how he said it. The Armed Forces’ disbarment charge against public interest lawyer Harry Roque unfortunately pits the defenders of the republic against a defender of human rights. The AFP sends all the wrong messages to the Filipino public and to the larger community of human rights advocates here and abroad, and actually invites a closer look at its own dismal historical record at vindicating human dignity and enforcing discipline in its own ranks.

Roque, who teaches law at the University of the Philippines, is counsel for the family of transgender woman Jennifer Laude, who was killed in Olongapo allegedly by US Marine Joseph Scott Pemberton. Roque has insisted from the beginning that Pemberton be surrendered to the Philippines, but it wasn’t until 11 days after Laude’s killing that the suspect, who until then was secured in US custody, was finally brought to the AFP headquarters. Laude’s sister Marilou and German fiancé Marc Sueselbeck clambered over a fence in order to get a glimpse of him.

Reports do not specify which conduct of Roque was deemed “inappropriate,” but the AFP generally refers to that incident as a “breach of camp security.” Indeed, there may have been a breach. But when the AFP cites language from the lawyers’ Code of Professional Responsibility that the lawyer “must bring honor to the legal profession by faithfully performing his duties to society,” it must realize that that precisely is what human rights lawyers do, and typically pro bono.

Military discipline is understandably more exacting than Laude’s grieving sister and fiancé may have expected, and at least the latter has apologized for the breach. But the AFP’s actions seem to gloss over the graver breach when a sovereign state like the Philippines has to beg for custody over a suspected murderer being investigated for a crime committed on Philippine soil against a Philippine national.

Indeed, even now, Pemberton is only physically in Philippine custody; he remains under guard by US sentries and officially under US authority. This is understandable, given the unspeakable risks and uncertainties in Philippine jails, and the Visiting Forces Agreement provides the legal justification. But those VFA clauses on custody remain contested, and indeed the Supreme Court itself has nullified the Romulo-Kenney agreement that allowed US Marine Daniel Smith to remain under US custody after being convicted of the rape of “Nicole.”

The AFP doth protest too much. For it to make a big fuss over the Oct. 22 incident but remain silent and supine over the compromised sovereignty created by the VFA shows that its true audience isn’t the Filipino people but the US representatives in the Philippines. If we were the AFP’s true audience, it will be aware that bad memories persist from the days of the US military bases, when accused US servicemen would escape from Subic and Clark before Filipino prosecutors could investigate or charge them. The VFA prevents that, but the continued US custody of Pemberton reminds us of our mendicant position.

The only explanation for the AFP’s strong reaction to the breach is that it doesn’t inspire the confidence of US military authorities in the capacity of Filipino troops to secure a prisoner like Pemberton. That is certainly a legitimate concern, and one that in fact might jeopardize future negotiations when we ask the US military to surrender to us fugitives from Philippine justice. But for the AFP to go out of its way to satisfy its US counterparts and forsake its credibility with its sovereign master puts in question its true priorities and commitments.

The AFP’s credibility suffers in the eyes of not just Filipinos but also the larger community of public interest lawyers. Worldwide, the growth of activist litigation in the courts has likewise brought about more acts of intimidation against human rights defenders. Global monitors have reported attacks and arrests in China and other parts of Asia.

The Integrated Bar of the Philippines, the authority that hears disbarment cases, is being watched by the global bar of public interest lawyers. What is now being tested is how it applies its own rules, including the rule that disbarment cases shall be “confidential in character,” and whether it counts public interest lawyering as part of the lawyer’s duty to “bring honor to the legal profession by faithfully performing his duties to society.”