The US government’s continued refusal to turn-over the custody of the four (4) US marines accused of raping the 22-year old Filipino woman is an affront to Philippine laws and its Constitution and is an abuse of international law.
Invoking Article V paragraph 6 of the Visiting Forces Agreement (VFA), the US government has refused to accede to the request of the Philippine government in a note verbale dated 16 Nov 2005 for the surrender of the marines. It maintained this position even after the service of the warrant of arrest issued by Judge Dilag of the Olongapo RTC hearing the case.
Article V paragraph 6 of the VFA provides –
“The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph…”
It is to be noted that there has been no request from the US government to the Philippine government for the former to retain the custody of the US servicemen. The taking of custody over these servicemen and refusal to surrender them to Philippine authorities from day 1 cannot be the kind of request contemplated by the agreement, especially since such refusal to surrender is in derogation of the prerogatives of the Philippines as a sovereign state. The request contemplated is a formal and expressed one, in consideration of the respect and dignity which each state is duty-bound to accord another.
Even granting that an implied request may be made, this does not justify the continued refusal of the US government to surrender custody to Philippine authorities. A request, by definition, need to be granted for it to take effect. The Philippine government’s repeated demands for the surrender of the accused to its custody, through the DFA note verbale of November 16, 2005 and recently, through the service of the warrant of arrest issued by the court, is a denial of that implied request, which decision – the US government, being the visiting state – must respect.
The VFA provision cited by the US government cannot be interpreted to give the US government the blanket authority to decide on its own, whether or not to keep custody of their servicemen accused of crimes committed within Philippine jurisdiction. To adopt an interpretation that allows this, is to allow the violation not only of our rules and statutes but also of our Constitution.
DOJ Secretary Gonzales himself pointed out that the refusal of the US government to turn-over the custody of the servicemen to Philippine authorities, will have the effect of putting these servicemen under recognizance of some named prominent official in the US embassy, who will answer for their presence during the trial. But therein, precisely, is where the problem lies – not because they are under recognizance of a non-Filipino, but that they are under recognizance in the first place. Recognizance, under our rules, is a form of bail. But these servicemen are not entitled to bail, at least not at this point of the criminal proceedings. No less than our Constitution, which is reiterated by the rules on criminal procedure, provides that when a person is accused of a crime punishable by reclusion perpetua, he/she is not entitled to bail when evidence of guilt is strong. Whether or not “the evidence of guilt is strong” is determined at the hearing conducted for and only after an application for bail has been filed by the person in custody. Thus, as it is, the US servicemen cannot be validly placed under recognizance; first, because the crimes they are accused of are non-bailable; and second, because they have not applied for bail; and they cannot apply for bail, unless and until, they are held under the custody of the Philippine authorities.
The US refusal to turn-over the custody of accused servicemen to Philippine authorities is in effect, unjustifiably granting them immunity from our laws – in blatant abuse of the international legal principle of diplomatic immunity, wherein only foreign ambassadors and ministers are immune from suit, and no one else.
The US government is obviously bent on insisting custody over the accused soldiers, in total disregard of the laws and processes of the Philippines, in the name of the VFA. But the VFA cannot be accorded a higher status than our own statutes. As in other statutes, the VFA should be construed to uphold the national policies of independence, national sovereignty and national interest. As in other statutes in derogation of sovereignty, the VFA should be strictly construed in favor of the Philippine state, so that our country’s sovereignty may be upheld and not narrowed or destroyed. The VFA should not be permitted to divest our state and government any of its prerogatives, rights, or remedies established by our rules, our laws, our jurisprudence and our Constitution.
To interpret the VFA otherwise is to allow, once again, the rape of our country. The US’ disrespect of our nationhood proves peoples’ movements right that this treaty will always be interpreted from the unequal – nay, colonialist – relations we actually have with the US.
We, women’s groups, express our utmost indignation over the US’ rejection of RP’s request for custody, even as we also decry the GMA government’s lukewarm attitude towards the issue. We vow to continue to support the victim and march in the streets until justice is served.
Coalition Against Trafficking in Women – Asia Pacific (CATW-AP)
Women’s Legal Education, Advocacy and Defense (WomenLEAD)
Women’s Crisis Center (WCC)
Alliance of Progressive Labor (APL) – Women
Bagong Kamalayan (Survivors’ Collective)
BUKLOD Center – Olongapo
 US paper: Our Gis not above law, Philippine Daily Inquirer, Sunday 15 January 2006, pp. 1 & 15.
 Sec 1. Rule 114, Revised Rules of Criminal Procedure
 Article III, Sec. 18, 1987 Constitution
 Sec. 7, Rule 114, RRCP
 sec. 8, Rule 114, RRCP.