Jurisdiction is having custody of the accused

Condescendingly, the US government denied the Philippines’ request to have “custody” of US Marine Pfc. Joseph Scott Pemberton who is accused of murdering a Filipino citizen, Jeffrey (Jennifer) Laude (“DFA won’t appeal US stand,” Front Page, 12/19/14). The Inquirer dedicated an editorial on the issue (“Down this road before,” Opinion, 12/20/14).

The Department of Foreign Affairs no longer negotiates even on matters of sovereignty. It has assumed a position subordinate to that of the United States as it has done before, on the issue of custody.

The justice secretary (a red-blooded Filipino) announced that there is now an “impasse” between the US and the Philippine governments on the matter of “custody.” Some senators believe it is time to have the Visiting Forces Agreement seriously reviewed.

Obviously, the DFA preempted President Aquino on the issue. For if it consulted with the President and the Department of Justice, conflicting positions would have been avoided.

By force of habit, the US Embassy dictated, in detail, to the DFA what should or must be done. US Ambassador Philip Goldberg, already meddling in the internal affairs of another sovereign state, only follows the supercilious demeanor of his predecessors, officiously telling our President what he thinks on both domestic and international issues. Even a US chargé d’affaires, who is accredited only with the foreign secretary, directly deals with Malacañang.

In diplomacy, when an “impasse” develops, the parties normally resort to international modes of peaceful settlement of treaty dispute, such as arbitration. But Goldberg rules as the final arbiter.

Criminal jurisdiction has always been a thorny issue in US-Philippine relations. We began with the “On base (US)-Off base (PH)” formula. The “On duty (US)-Off duty (PH)” approach was later devised; it was not satisfactory either. Then “ugly Americans” and Filipino Gunga Dins discovered the “jurisdiction” (PH)-“custody” (US) solution. It is an astounding formula, oxymoronic at first blush, defying Hackworth (law) and Merriam-Webster at the same time. But custody is inseparable from jurisdiction.

The legal situation is complicated by the ruling of the US Supreme Court in Medellin vs Texas that an international agreement not concurred in by the US Senate is unenforceable in US territory. America has also not ratified the International Criminal Court treaty (Rome Statute), showing US contempt for foreign criminal jurisdiction.

The DFA has changed. We still remember Ambassador Leon Ma. Guerrero telling the Malaysian head of delegation in Bangkok, negotiating the Sabah claim: “Excellency, I reject your rejection!”

The decision of the DFA not to “appeal” the US stand appears to have emanated from the DFA Legal Office which, incidentally, could not even perform the clerical duty of giving an official copy of the Enhanced Defense Cooperation Agreement to us, after promising three times.

—NELSON D. LAVIÑA,

Retired Ambassador

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