VFA treachery

When Olongapo City Regional Trial Court Judge Roline Ginez-Jabalde found Lance Cpl. Joseph Scott Pemberton, a US Marine, guilty of homicide in the death of transgender woman Jennifer Laude, she ordered him committed to the New Bilibid Prison (NBP) in Muntinlupa City. Pemberton’s security detail, composed of American soldiers, refused to turn him over to the Philippine National Police or the Bureau of Corrections. A two-hour standoff occurred, until the judge, acting on the motion of Pemberton’s lawyers, ordered his temporary return to his detention facility inside the Joint US Military Assistance Group compound in Camp Aguinaldo.

The standoff obscured what was otherwise a clear legal victory for both Laude’s family and friends and for the national interest. And it reminded Filipinos yet again of the essentially unequal relationship at the core of the Visiting Forces Agreement.

We understand that, under the provisions of the VFA, which allowed the “temporary” return of the American military to the Philippines less than a decade after the last American base was shut down, the Philippine and American governments have the responsibility to agree between themselves on where to detain a visiting American soldier once convicted of a crime.

What we cannot understand is how, when the controversial VFA was drafted, the Philippine side could even imagine that that provision would be fair, or be perceived as fair, to Philippine interests. Yes, the place of detention would be inside Philippine territory, but did any of the senators who supported the VFA then think that the Philippine government—regardless of administration or ruling coalition—would insist on the NBP?

It was always going to be some place other than where ordinary Filipinos are imprisoned.

The notion that Philippine officials can insist on the NBP or a similar facility became unrealistic the moment the VFA became law—when it was recognized as a treaty by our own Senate, but treated as a mere executive agreement by Washington.

The veteran lawyer Jose Justiniano, who has been involved in the prosecution or defense of two American soldiers facing major criminal charges in the country, gave the lie to the notion.

“There was already an agreement that the AFP would be the custodial place. That’s why the US government is insisting that he should be brought to Camp Aguinaldo,” he said, and added: “The US government only holds that position because they know the conditions inside Bilibid. And that’s OK. All they’re after is the safety of their citizens. Especially since this involves a soldier, and you know how much they protect soldiers.”

A pity we don’t protect our own as zealously as the Americans protect their soldiers. The issue is that a crime was proven beyond reasonable doubt to have been committed against a Filipino citizen, in her own country. Conviction should carry the penalty that would have been meted out to a Filipino; the convicted should suffer the same sanctions as Filipinos convicted of the same crime would suffer, regardless of “the conditions inside Bilibid.”

Otherwise, we are granting the criminal special privileges. As it is, even as the Olongapo court awaits a copy of the memorandum of agreement between the Philippine and US governments regarding Pemberton’s detention facility, we—because of the VFA—are giving Pemberton special treatment.

In Judge Ginez-Jabalde’s ruling, she invoked the rule on treachery (if present, it would have justified a finding of murder, instead of just homicide). “For treachery to be considered, two elements must concur: (1) the employment of means of execution that gives the persons attacked no opportunity to defend themselves; and (2) the means of execution were deliberately or consciously adopted.” She also ruled out the presence of the aggravating condition known as abuse of strength. “Likewise, abuse of superior strength is not present when the killing was unplanned and not premeditated.”

To the Filipino outraged by the two-hour stand-off, these elements may well describe the treacherous political arrangements that led to the VFA and its unequal provisions.