Down this road before

American has spoken, and the Philippines can only nod. That, in a nutshell, is where we find ourselves yet again, in the case of US Lance Cpl. Joseph Scott Pemberton, who stands accused of murdering Filipino transgender woman Jennifer Laude. But despite his being formally charged in a Philippine court, America has stoutly insisted that it will retain custody of the Marine. “We are doing it for certain reasons,” said US Ambassador Philip Goldberg. To which Armed Forces of the Philippines spokesperson Col. Restituto Padilla let drop a riposte that must have warmed the cockles of his American overlords (sorry, counterparts): “If the United States is insisting to keep the custody [of Pemberton], that is their right.”

Of course. We’ve been down this road before, so all this bowing and scraping must now be familiar reflexes to officials of the AFP, the Department of Foreign Affairs, and Malacañang. It was the AFP through its chief spokesperson, Lt. Col. Harold Cabunoc, that first took up the cudgels for Pemberton, offering the excuse that he must have had one too many to drink, but that “he probably didn’t mean to kill her.” Malacañang, for its part, was stingy in its words of sympathy for Laude and her family. But it had lofty words to say about the fact that another American soldier was accused of a crime against a Filipino citizen: “We should be looking at the bigger picture,” said administration spokesperson Herminio Coloma.

And now, with the Olongapo City Prosecutor’s Office indicting Pemberton for murder, on grounds of “treachery, abuse of superior strength, and cruelty in the slaying” of Laude, and America quick to invoke the Visiting Forces Agreement to refuse the Philippines custody of the soldier after a court ordered his arrest, what does the DFA have to say?

Why, that America is right, of course. “The position of the US [to retain custody of Pemberton] actually is not inconsistent with the Visiting Forces Agreement,” said Assistant Secretary Charles Jose of the DFA. “If found guilty and convicted, Pemberton will definitely serve time in the Philippines,” and that’s the only time the country will have “sole custody” of him.

How reassuring. But if the past is any precedent, it’s not farfetched to think that, with the Philippines having waved the white flag and given up the fight for custody too soon, it will once again be reduced to the position of acquiescing to US positions every time, down a slippery slope, until it wakes up to the dispiriting but not wholly unfamiliar news that Pemberton has hightailed it out of the country under the aegis of the US Embassy.

Or have we forgotten the case of Lance Cpl. Daniel Smith, who was tried and convicted of raping a Filipino woman in 2005, and was ordered by a Philippine court of law to be held in a local jail—a judgment that never came to pass because America, again invoking the VFA, made a special agreement with the Philippine government to hold him in the US Embassy instead? The Supreme Court would later declare that agreement void, but too late: “Nicole,” the Filipino woman who had accused Smith of rape, would recant her testimony and fly to the United States, the Court of Appeals would soon junk the conviction, and Smith would be on the first plane out of the Philippines.

The chances of a similar chain of events happening in the Pemberton-Laude case are tremendous, with America finding big-time allies such as Fidel Ramos to lean on the Philippine government to go easy on throwing the book at Pemberton. “You know that issue, … for all of us, must not be the cause of damage of Philippine-US relations because there are higher interests,” the former president said.

“The big picture.” “Higher interests.” But whose interests? Justice Secretary Leila de Lima observes that the 15-year-old VFA is riddled with “vague provisions” and lacks clear implementing guidelines, resulting in differing interpretations between the US and Philippine governments. That’s why the American ambassador can so blithely dismiss the Philippine position that its jurisdiction over Pemberton extends to physical custody: “That may be a Philippine legal opinion, but it’s not our view of how the VFA works.”

The US view, apparently, is what should take precedence, and we can only grin and bear it. The review of this highly unequal agreement between so-called equals is past due.