Feb 222013
 

COUNSELS for the Defense of LIBERTIES
4th F KAIJA Bldg.7836 Makati Ave.
cor. Valdez St., Makati City,
Philippines
Tel. No. 9213473 or 09209509406
E-mail Address: lawcodal@gmail.com

CONVENORS/MEMBERS
Lawyers:
Atty. Florisa Almodiel
Prof. Victoria Avena
Comm. Remedios Balbin
Atty. Hubert Bustos
Atty. Emilio Capulong, Jr.
Atty. Neri Colmenares
Atty. Charmaine de la Cruz
Atty. Cora Fabros
Atty. Gregorio Fabros
Atty. Ingrid Gorre
Prof. Marvic Leonen
Atty. Nenita Mahinay
Comm. Nasser Marohomsalic
Atty. Noel Neri
Atty. Edre Olalia
Atty. Julian Oliva, Jr.
Atty. Jobert Pahilga
Atty. Rachel Pastores
Atty. Ma. Luz Rañeses-Raval
Atty. Amelyn Sato
Atty. Cleto Villacorta

Law Students:
Ms. Jo Abaya (Ateneo)
Ms. Cherryl Aguilar (UST)
Mr. Julius Matibay (Arellano)
Ms. Shirley Nuevo (San Beda)
Ms. Jill Santos (UP)

Paralegals:
Mr. Daniel Javier
Mr. Cesar Arellano

SECRETARIAT
Prof. Victoria Avena
Comm. Remedios Balbin
Atty. Florisa Almodiel
Atty. Rachel Pastores
Atty. Neri Colmenares

Atty. Edre Olalia
International Affairs

Ms. Jill Santos
Linkperson for
Law Students
Atty. Amelyn Sato
Mr. Daniel Javier
Ms. Shirley Nuevo
Ms. Jo Abaya

CODAL
Counsels for the Defense of Liberties

US CUSTODY OF 6 MARINES UNCONSTITUTIONAL: Philippine Laws Prohibit their
transfer Abroad

Pres. Gloria Arroyo will be committing a culpable violation of the Constitution
if she will allow the United States to continue exercising absolute custody
over the six US Marines accused of rape and their transfer to Okinawa, Japan.
Under Sec. 17 and Sec. 5, of Art. VII, 1987 Constitution the President is
required to defend the Constitution and execute all laws faithfully.

Under Section 13 of the 1987 Constitution, anyone who commits a capital offense
in the Philippines cannot post bail nor be released on recognizance, when the
evidence of guilt is strong. Should a Philippine court find the evidence of
guilt strong against the US soldiers, they have to be placed in Philippine
prison like everybody else in similar circumstances. Rape is a capital offense
and since the rape they were accused of committing was committed by ‘two or
more’ persons, the 6 marines may get the death penalty if convicted under Sec.
11 of RA 7659 or the heinous crimes law. Allowing the accused to remain in US
custody whether here or abroad is releasing them on ‘recognizance’ to the US
government, clearly not allowed under the Constitution. The Visiting Forces
Agreement, or any treaty for that matter, cannot trump the 1987 Constitution.

The US will in fact be violating their obligations under the VFA if they
continue exercising absolute custody over the accused as provided in Art. II
(VFA):

Art. II It is the duty of the US personnel to respect the laws of the Republic
of the Philippines x x x The US Government shall take all measures within its
authority to ensure that this is done.

In fact, presuming the VFA to be constitutional. the current custody exercised
by the United States is already patently illegal, without the US filing an
official request for the custody of the accused as required under Art. V, par.
6 of the VFA:

6. 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. . . . In the event Philippine judicial
proceedings are not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one year period will not
include the time necessary to appeal.

Even if a formal request had been filed, the initial custody of the US becomes
illegal if the Philippines will refuse such a request. A ‘request’, the term
used in the VFA, connotes that it may be refused by the Philippine government.
To interpret this provision otherwise as Pres. Arroyo is doing, will virtually
render the Philippines with essentially no criminal jurisdiction over the
matter.

By recognizing the right of the US to maintain custody of the accused, Pres.
Arroyo has placed the acquisition of jurisdiction over the crime at the
discretion of the US. Under Philippine criminal laws, local courts can only try
a case if they have jurisdiction over the offense charge, in this case rape,
and the person of the accused, the 6 accused. Unless the accused is arrested or
surrenders to the Court, no court can try the rape case. Trial in absentia is
prohibited in the Philippines before the accused is arraigned. The VFA
therefore does not vest criminal jurisdiction over US soldiers without the
cooperation of the United States, unless we exercise the right to refuse the
‘request’ under par. 6 of the VFA.

It must be noted that the US can immediately imprison any Filipino soldier who
commits a crime in US territory, and may waive said right only upon ‘request’
of the Philippine government. Article VIII, Sec. 2 of the VFA Counterpart
Agreement in the US (VFA Part II) merely requires the US government to request
US ‘authorities’ detaining a Filipino to release that Filipino to Philippine
custody:

Sec. 2 (VFA II) x x x The (US) Department of Defense will ask the appropriate
authorities in the United States having jurisdiction over an offense committed
by Republic of the Philippines personnel to waive in favor of the Republic of
the Philippines their right to exercise jurisdiction, except in cases where the
Department of State and the Department of Defense, after special consideration,
determine that United States interests require the exercise of United States
federal or state jurisdiction.

Since the US maintains the right to refuse the Philippine ‘request’ for
custody, the Philippines should also do the same under the terms of the
counterpart agreement. Any act of the US, therefore, to transfer the accused
outside Philippine territory immediately clashes with the Constitutional rights
of the victim, legal provisions on bail and the equal protection clause.

Furthermore, the Constitution is violated if the US allows the accused to go
abroad should the case drag on for more than a year, especially since they have
the opportunity and means to flee. Many of the 108 rape cases committed by US
soldiers in 1983-88 were dismissed due to the absence of the accused. This
disparity in treatment is magnified by the fact that arrested Filipino “TNT’s”
in the US are immediately detained and deported like cattle for not having a
visa, while the accused here stay in comfortable rooms in their embassy or
hotels. Lastly, Filipino officials like Usec. Zosimo Paredes who intervene and
defend the US position are not only violating Sec. 1 Art. XI of the
Constitution on patriotism, but may also be charged with obstruction of
justice.

The Visiting Forces Agreement is unconstitutional. It not only violates the
1987 Constitution’s provisions on deployment of foreign troops, nuclear free
Philippines and provisions on sovereignty, among others, but also violates the
Constitution’s provisions on criminal offenses. By not asserting Philippine
sovereignty and jurisdiction over the accused, in violation of the
Constitution, Pres. Arroyo has added one more ground for her impeachment and
one more item in the list of crimes she has committed against the Filipino
people.

Reference : Atty. Neri Javier Colmenares—Convenor (Tel. 09209509406) 11 Nov
2005

 

The date posted here is due to our website rebuild, it does not reflect the original date this article was posted. This article was originally posted in Yonip on Nov. 15th 2005

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