CAN DUTERTE'S ALLIANCE WITH CHINA, RUSSIA END EDCA?
By JOSEPH G. LARIOSA
(© 2018 Journal GlobaLinks)
“Our problem is: however, the (Philippine) Supreme
Court decides, it becomes our loss. “Kapag ang tao
ang nagkamali, makukulong siya, parurusahan
siya. (If a Filipino commits a mistake, he goes
to jail. He is penalized. Pero kung ang
Supreme Court ang nagkamali, nagiging
batas ito. (But if the Philippine Supreme
Court makes a mistake, its mistake
becomes a law.)
-- Virgie Lacsa Suarez, private prosecutor
of U.S. Marine Pemberton
CHICAGO (JGL) – A Filipina lawyer who prosecuted a U.S. Marine who strangled and killed a Filipino transgender four years ago in the Philippines said the Visiting Forces
Agreement (VFA) between the United States and the Philippines was amended so that if a U.S. soldier were to commit a serious crime in the Philippines, the Philippine government can gain custody of the erring soldier unless the U.S. government makes the request to gain custody.
But after Lance Cpl. Joseph Scott Pemberton was arrested following the gruesome murder of Filipino transgender Jennifer “Ganda” Laude, the government of President Noy Aquino waived this right under the amended Enhanced Defense Cooperation Agreement (EDCA) and allowed the U.S. government to gain custody of Pemberton even without the U.S. government making such request.
This was disclosed by Virgie Lacsa Suarez, one of the private prosecutors of Pemberton, during the “FaceTime Night,” a remote TV dialogue last Tuesday, May 8, with members of the Filipino American Human Rights Alliance (FAHRA) led by Messrs. Jerry Clarito and Ago Pedalizo of Chicago, Illinois and San Francisco, California, respectively. Members of CIRCA-Pintig, including Ms. Divine Calo, who hosted the event in Chicago, and Filipino American Grandparents' Association of Chicago (FAGPAC), represented by Ms. Sally Richmond, also took part in the discussion.
“CALL HER GANDA” IN WORLD PREMIERE IN NEW YORK CITY
Ms. Lacsa Suarez was speaking from New York City, New York where she was attending the 17th annual Tribeca Film Festival where the movie about her client, “Call Her Ganda (Beautiful),” was among the entry films.
Call Her Ganda, a documentary directed by PJ Raval and co-written by PJ Raval and Victoria Chalk and co-produced by PJ Raval along with Lisa Valencia-Svensson, Marty Syjuco and Kara Magsanoc-Alikpala, held a world premiere during the film fest. It was a story of Laude, who was found dead in a motel room with a U.S. Marine (Pemberton) as the leading suspect and grassroots activists demanded accountability. The ensuing case lays bare a constellation of social and political tensions between the United States and the Philippines.
THIS WAS THE MUG SHOT of U.S. Marine Lance Cpl. Joseph Scott Pemberton shortly after he was arrested for the murder of Jennifer Laude, a.k.a. Jeffrey Laude, whose neck was broken when Pemberton found out that Jennifer was not a woman while trying to perform a sex act on Pemberton. Even if the U.S. government did not request for his custody based on the Enhanced Defense Cooperation Agreement (EDCA), the Philippine government in trying to curry favor from the U.S. government to stop China from encroaching over the Philippine territory in Philippine Western Sea (South China Sea) ceded Pemberton's custody in violation of the military agreement to the utter displeasure of the Laude's survivors. Pemberton is now serving time inside the friendly confines of JUSMAG (Joint U.S. Military Assistance Group) located inside Camp Crame, a military camp in the Philippines.
The murder took place at a time when the Aquino government was courting the U.S. government to rebuff China from claiming nearly most of the resources-rich West Philippine Sea (South China Sea), which is also being contested by other countries, including the Philippines.
“RULE OF THE FLAG”
The subservient attitude of the Philippine government allowed the U.S. yet again to trample upon Philippine sovereignty following a public outcry when the U.S. government asserted custody of another U.S. Marine, Lance Cpl. Daniel Smith, who was accused and convicted of raping a Filipina, Suzette Nicolas, nine years earlier. Under the so-called “rule of the flag,” the U.S. gets custody of its erring personnel wherever the US flag flies. Despite the court order that Smith be jailed in the Philippine prisons following his sentence to 40 years, Smith was confined in the U.S. Embassy in Manila while appealing his sentence.
When the victim's mother submitted an affidavit from "Suzette dated March 12, 2009 saying she wasn't sure that she was raped," the Court of Appeals reversed Smith's conviction and ordered his release. At that time, Smith was in the Philippines as part of the Visiting Forces Agreement. As a result, when the VFA was extended under EDCA in 2014, there was amendment that was inserted that says if a U.S. soldier commits a serious offense like rape or murder in the Philippines, the Philippine government gets custody of the soldier, unless the U.S. government makes a request for custody, according to Ms. Lacsa Suarez.
Ms. Lacsa Suarez said during the 2016 presidential elections when then Mayor Rody Duterte promised the voters that he would ride a jet ski to a disputed island occupied by China and personally stake the Philippines' claims, she was overjoyed that a presidential candidate could make such a bold pledge. She was even more impressed when Mr. Duterte showed his bravado by badmouthing President Obama and anybody who would dare criticize him for his plan to stage his war on drugs.
“But despite his macho posturing, sa dami ng masasamang sinabi niya (his badmouthing) against the U.S. government, not a single agreement between U.S. and the Philippines was terminated by Duterte.
“Nandiyan pa rin ang EDCA and the VFA (Visiting Forces Agreement), inaprobahan na niya. (And yet Duterte has still approved EDCA and the VFA). EDCA was copy-pasted from MBA (Military Bases Agreement) terminated (by the Philippine Senate) in 1991, the feisty woman lawyer said.
If there is a problem (with these agreements), they resort to “compromised proceedings.” They will say EDCA (a ten-year agreement signed by Presidents Obama and Noy Aquino in 2014 is renewable every ten years) is an implementing rules of VFA. Your power will come from VFA. Very bad and affects our sovereignty, wala siyang binabago sa mga agreement. (Duterte never changed these agreements.)”
VIRGIE LACSA SUAREZ, one of the private prosecutors of U.S. Marine Lance Cpl. Joseph Scott Pemberton, is shown beside an undersized Statute of Liberty in New York, New York where she attended the 17th annual Tribeca Film Festival where the movie about her client, “Call Her Ganda (Beautiful),” was shown to a world premiere. She later agreed to speak via TV remote last May 8 to discuss the case of her client with members of FAGPAC, CIRCA-Pintig and Filipino American Human Rights Alliance (FAHRA) led by Messrs. Jerry Clarito and Ago Pedalizo of Chicago, Illinois and San Francisco, California, respectively. (Facebook photo)
She urged Mr. Duterte to terminate the EDCA/VFA. “It only takes 50 days to terminate VFA.
“There is no reason not to terminate it. It is an at-will agreement.
SEN. MIRIAM'S LEGACY
“Bago namatay si (before she died) (Senator) Miriam Defensor Santiago, maraming pumirma dito sa Senate to terminate VFA or review. Which is a pending resolution in the Senate.
“Kaya lang hindi na tinapos, hindi na rin ni-review. (However, this was not pursued. So, there was no review.) And EDCA arrived.
“Matagal natin niralihan, pinapawalang bisa ang (There have been so many rallies to invalidate) VFA and Supreme Court said, “VFA is implementing rule of Mutual Defense Treaty in 1951.”
JERRY B. CLARITO, convenor of Filipino Human Rights Alliance (FAHRA) in Illinois, reacts to a statement from members of Filipino American Grandparents' Association of Chicago (FAGPAC) and CIRCA-Pintig during a segment of the presentation of Virgie Lacsa Suarez (left) who is shown on the TV screen with Mr. Ago Pedalizo of FAHRA-San Francisco, California last May 8 where Ms. Suarez discusses the update of the case of her client, Jennifer Laude, a.k.a. Jeffrey Laude, inside the home of Ms. Divina Calo, member of CIRCA-Pintig, at the far northside of Chicago, Illinois. (JGL Photo by JOSEPH G. LARIOSA)
“VFA was enforced in 1998. How can it become an implementing rule of MDT 1951?
“Ingot ba ang SC for this? (Isn't the Supreme Court this stupid?)
“How can a 1998 VFA become an implementing rule of a treaty in 1951, more than 50 years ang (with) gap? Di ba ang implementing rules ay more than 15 days lang? (Isn't implementing rules enforced within 15 days?)
“ANY WHICH WAY SC DECIDES IS OUR LOSS”
“Our problem is: however the Supreme Court decides, it becomes our loss.
“Kapag ang tao ang nagkamali, makukulong siya, parurusahan siya. Pero kung ang SC ang nagkamali, nagiging batas ito. (If a Filipino makes mistake, he goes to jail and is penalized. But if the Supreme Court makes a mistake, this becomes a law.)
SALLY RICHMOND (extreme left) of the Filipino American Grandparents' Association of Chicago (FAGPAC) watches intensely the talk of the resource speaker, Virgie Lacsa Suarez, one of the lawyers of the survivors of Filipino transgender Jennifer Laude, a.k.a. Jeffrey Laude, during “FaceTime Night,” a remote-control TV dialogue last May 8 with members of FAGPAC, CIRCA-Pintig and Filipino American Human Rights Alliance (FAHRA) led by Messrs. Jerry Clarito and Ago Pedalizo of Chicago, Illinois and San Francisco, California, respectively. Others from left are Luis Pascasio, Daisy Castro, host Divine Calo and Fe Mendoza. (JGL Photo by JOSEPH G. LARIOSA)
“Because Congress and Senate cannot do anything about it, the Senate will have to pursue it. Miriam Santiago started it but they did not pursue it. Dapat may street rally lagi, lingo-lingo may rally tulad ng Laude case, sa Olongapo. (There should be rally always, every week, like those done in the Laude case at Olongapo.)
She also said, “The Philippines does not have an independent foreign policy. In fact, Duterte is a big patron of patronage politics. He is looking for another bigger patron. Namamangka siya sa (He is riding on the boats of) U.S., China and Russia.
PH FOREIGN POLICY WORSE OFF
“He is welcoming forces from Russia, Japan, Australia, China, and everywhere (to visit the Philippines). This is intervention. This will affect our territorial integrity and sovereignty.
“Mas delikado tayo ngayon kasi parang bukas ang ating bansa sa lahat ng puwersa ng mga banyaga. (We are more at risk now because we welcome all foreign forces in our shore.)
“And not only that, the government is pushing charter change (thru) federalization to open our economy to foreign investments. Wala sanang problema kung ang ekonomiya ay kayang kontrolin ng ating bansa. Pero, ibubukas nila sa foreign investment ang public utilities, hindi dapat mag-may-ari ang dayuhan ng property sa Pilipinas under the proposed charter change. (There would not have been a problem if our country can control the economy. But they are opening public utilities to foreigners. Foreigners should not own public utilities in the Philippines under the proposed charter change. Pero (But), media, communication, education, services that were once exclusive to Filipinos are now open (for business) to foreigners.
FIRST TO BE CONVICTED:
UNITED STATES MARINE Lance Cpl. Daniel Smith, who was accused and convicted of raping a Filipina, Suzette Nicolas, nine years earlier, was sentenced to 40 years under the Visiting Forces Agreement in 1998. Under VFA, the U.S. still maintained custody of an erring U.S. soldier, who violated Philippine laws when charged and convicted, invoking the so-called “rule of the flag” where the U.S. gets custody of its erring personnel wherever the US flag flies. Despite the court order that Smith be jailed in the Philippine prisons following his sentence to 40 years, Smith was confined in the U.S. Embassy in Manila while appealing his sentence.
“This is not good for our economy. We cannot depend on foreign economy.”
16 U.S. SOLDIERS INSIDE COURTROOM
During the trial of the case, Ms. Lacsa Suarez said, “Inside the court, 16 U.S. soldiers were (present), my client, ako lang at isang lawyer ang (my client, myself and another Filipino private prosecutor were) present assisted by Filipino police. Pag-magco-commute ako from Manila hanggang Olongapo, (ako lang). (Samantala) si Pemberton ay napapaligiran ng eroplano, convoy of truck of soldiers. (When I commute from Manila to Olongapo City, I am by myself. But Pemberton is shadowed by an airplane, a convoy of truck of soldiers.
“Bukod pa doon (Besides), si (this) Pemberton is already protected by the U.S., he is still protected by the Philippine government. Samantala ang cliente natin, si (the survivors of) Jennifer Laude ay walang nakukuhang protection sa ating bansa. (While our client, the survivors of Jennifer Laude did not get any protection from the Philippine government.).
Because EDCA requires that the case should be adjudicated within one year, otherwise Pemberton will be shipped away from the Philippines and out of Philippines' jurisdiction, she said the Regional Trial Court had to hold a marathon hearing of the case – twice a week every week for one year.
It was reported that the murder case was downgraded to a lesser offense of homicide when Pemberton admitted “fighting with, but not killing, Laude and he told the court he acted in self-defense after he discovered that a man, not a woman, was performing a sexual act on him.”
PEMBERTON SENTENCED TO 10 YEARS IN PRISON
Pemberton was eventually sentenced to 10 years in prison.
Ms. Lacsa Suarez said the full might of U.S. military was in full display during the sentencing when the judge ordered Pemberton's commitment to Muntinlupa (Bilibid) national penitentiary.
VIRGIE LACSA SUAREZ, one of the private prosecutors of U.S. Marine Lance Cpl. Joseph Scott Pemberton, is shown here during a TV dialogue during “FaceTime Night” last May 8 with members of FAGPAC, CIRCA-Pintig and Filipino American Human Rights Alliance (FAHRA) led by Messrs. Jerry Clarito and Ago Pedalizo (right) of Chicago, Illinois and San Francisco, California, respectively. (JGL Photo by JOSEPH G. LARIOSA)
“Humarang ang napakaraming U.S. soldiers at hindi nila hinayaang madala sa kulongan ng mga Filipino police si Pemberton. (So many U.S. soldiers blocked the Filipino police from taking Pemberton to the Muntinlupa national penitentiary.)
“It was very frustrating experiment that right inside the Philippine court, our own police officers, our own judge were actually inutil (impotent) by the act of the U.S. soldiers.
“Sa loob mismo ng korte natin. Nagkaroon ng (There were) more than three (3) hours stand-off. Ayaw namin pumayag na hindi madala si Pemberton sa Bilibid. Ayaw din ng mga Amerikano. (We did not want that Pemberton would not be taken to Muntinlupa Bilibid prison. The U.S. soldiers also did not want either to take Pemberton to Muntinlupa.)
PEMBERTON JAILED IN THE FRIENDLY CONFINES
“Kaya ang judge nag-rule siya -- na ok, mag-usap ang Pilipinas at Amerikano kung saan ikulong si Pemberton. (So, the judge ruled: the Philippines and the American governments should discuss where Pemberton will be confined.)
In the meantime, doon na muna siya sa Camp Crame dahil meron doon facility kung saan dapat makulong si Pemberton. (Pemberton is at the moment serving time inside a U.S. facility JUSMAG -- Joint U.S. Military Assistance Group – inside Camp Crame.
He will be released from detention after ten (10) years or until 2025. Pemberton was also ordered to pay the family PhP4.6-M (US$92,000) pero hanggang ngayon kahit singkong doling hindi pa nababayaran ni Pemberton ang pamilya because he filed an appeal before the Supreme Court. (But even up to today, the surviving family has not received a single dime because he filed an appeal before the Supreme Court.)
“Now we are waiting for the decision of the Supreme Court,” she said.
“PEMBERTON'S SENTENCE COULD NO LONGER BE REVERSED”
“However, I am certain that the conviction will be sustained because the Supreme Court is not a trier of fact. The facts had already been sustained by the Court of Appeals. The fact that the Court of Appeals sustained the trial in the lower court, the finding of facts is considered final. The Supreme Court can no longer reverse it. It is just a matter of time, I believe lawyers are still availing with the remedies under the law only for attorney's purposes because the Supreme Court will not be able to reverse facts.
“Maraming (There were) attempts of the U.S. to settle the case. The Laude family never entertained any offers in 2016 by the U.S. soldiers and is being urged to sign a waiver and quit claim. Ibibigay raw sa kanila ang pera (They will get the money) if they sign (up), so it will speed up Pemberton's release, (para mapabilis ang paglabas ni Pemberton) based on good conduct sa pag-aaral (thru schooling).
“Good conduct can only be effective if you are in need. Pero si (But) Pemberton, magsosori lang siya. (will just say, “sorry”).
P50 (U.S.$1) BUDGET PER FILIPINO PRISONER SCARES U.S. SOLDIERS
Ms. Lacsa Suarez said, “Nag-aaral siya sa Internet (Pemberton is attending school thru Internet). He has special privileges. Masarap ang pagkain niya (eating nutritious food). Alam mo naman ang budget sa kulongan ay (You know the budget for a Filipino prisoner is) P50 (US$1) per day. Definitely, Pemberton is not getting the P50 per day. In 2001, the U.S. Federal Bureau of Prisons spends $62.01 per day per inmate.
This meager budget and the filthy and miserable living conditions in Philippine jails are something that scare the hell out of Pemberton or any other U.S. soldier.
After Philippines gained independence from the U.S. in 1946, there was a string attached: The US signed a military bases agreement with its former colony, allowing US forces use 23 military installations for 99 years subject to renewal. In 1966, the term of lease was reduced from 99 to 25 years, expiring in 1991.
The 1979 amendments would reaffirm Philippine sovereignty over the bases and provided for a thorough review of the agreement every five years. The first review, in 1983, resulted in several further concessions to Philippine demands for increased sovereignty. The United States also pledged its best efforts to provide the Philippines with US$900 million in economic and military aid over the next five years (1984-88), up from US$500 million over the previous five years.
On September 16, 1991, in a vote of 12-11, the Philippine Senate rejected a negotiated treaty that would allow an extension of the stay of the U.S. bases in the country. The 11 senators who voted in favor of the new treaty were short of five of the two-thirds majority needed for ratification.
In 1964, a Filipino boy was shot by a sentry at Clark U.S. Airbase. In 1968, a fisherman was shot and killed by sentries in Subic Naval Base. On the same year, an American guard shot and killed another a Filipino at a US base near Manila. Afterwards, a US soldier shot a Filipino base employee with his service pistol, saying he mistook the Filipino for a wild boar.
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