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VFA can not trump Philippine Constitution, laws

Atty. Neri Javier Colmenares
Counsels for the Defense of Liberties (CODAL)

December 29, 2006

Under Sec. 6 Rule 110 of the Rules of Criminal Procedure, the Olongapo Regional Trial Court, “within ten days from the filing of the information” against the US soldiers accused of rape, “shall issue a warrant of arrest” upon finding probable cause in the offense charged against the accused.

Police authorities serving the warrant against the accused has all the powers of the Philippine legal system to execute the warrant, by force if necessary, within 10 days from receipt of the warrant issued by the court, as required by Section 4 of the same Rule 110. Rule 110 (Sec. 3) categorically declares that ‘it shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay.”

The police or any government official, including the VFA Commission, who fails to or obstructs the execution of the warrant is liable under Sec. 1 (d) of PD 1829 or an Act Penalizing the Obstruction or Apprehension of Criminal Offenders which penalizes with prision correccional anyone who “delays the prosecution of criminal cases by obstructing the service of process or court orders”. Any US official, not so registered with the DFA as a consular or embassy agent as provided for under RA 75, may also be arrested by the police for violating Sec. 1 ( c ) of PD 1829 which penalizes any person who “obstructs or impedes, frustrates or delays the apprehension of suspects and the investigation or prosecution of criminal cases”.

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. Section 6 of the VFA agreement granting custody of an accused US national to the US cannot trump Section 13. Considering that the evidence of guilt against the US soldiers is very strong, 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 was committed by ‘two or more’ persons’, with the use of ‘superior force’ on the intoxicated victim, the accused 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, a mere Executive Agreement under US laws which was not ratified by the US Senate, cannot override the 1987 Constitution, the Rules of Court or any Philippine law.

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.”

It is treacherously incorrect for the DOJ to claim that Philippine laws applicable to all Filipinos, cannot be applied to US nationals by virtue of the VFA. By recognizing the right of the US to maintain custody of the accused, Pres. Gloria Arroyo and the Department of Justice have 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. Unless the accused is arrested or surrenders to the Court, no court can try the rape case for failure to have jurisdiction over the ‘person’ of the accused. Trial in absentia is prohibited in the Philippines before the accused is arraigned. Should the accused fail or refuse to appear before the Olongapo RTC, the criminal case cannot prosper.

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—and refuse any US request for custody.

Any act of the US, therefore, to withhold custody of the accused from the Philippine government immediately clashes with the Constitution, the rights of the victim, legal provisions on bail and the equal protection clause.

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 US soldiers stay in comfortable rooms in their embassy or hotels. If the government pursues its current deference to US custody, and the US embassy fails to produce the accused soldiers in court, we may end up with a trial against the Filipino driver only while the accused US nationals go free—another statistic in the long list of US soldiers who escaped from the porous clutches of the Philippine judicial system. #

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