Sen. Miriam Defensor Santiago, chair of the Senate Foreign Relations Committee, said that her committee will conduct an inquiry in aid of legislation on the alleged killing of a Filipino transgender by a U.S. marine in Olongapo City.
Santiago said she will set the hearing after the Senate resumes session, and conduct the investigation on or about Wednesday, October 22.
The senator said she will invite PNP operatives assigned to the case, hotel employees on duty when the suspect and the victim allegedly registered to rent a room at the hotel, as well as family members and friends of the deceased.
Santiago said the timing of the alleged crime is “egregious,” because it came just after the joint military exercises between the two countries, and just before American and Filipino military leaders met on Tuesday, 14 October 2014, for discussions on the new Enhanced Defense Cooperation Agreement (EDCA).
Santiago, an expert in international law, who had to waive her election as judge of the International Criminal Court because of cancer, said that under the Visiting Forces Agreement (VFA), the Philippines has jurisdiction over the U.S. marine because the offense was reportedly committed in Olongapo City and is punishable under the Philippine Penal Code.
But the senator was quick to point out that the VFA, paragraph 6, Article 5, 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.”
The senator said that this provision should be compared with another provision in the same paragraph which states: “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.”
“The disparity is very clear. The Philippines has jurisdiction but, upon mere request by the U.S., our law enforcement is required to immediately turn over the custody of the American military personnel to the U.S.,” the senator said.
The senator went on to point out that should the Philippine Government consider the crime to be an extraordinary case and request custody, the U.S. is required only to take the Philippine position “into full account.”
Santiago heatedly pointed out that when the U.S. makes a request, the Philippines is required to immediately turn over custody of the suspect, but if the Philippines makes a request because the case is considered extraordinary, the U.S. is not required to immediately grant the request, but will only take it into full account.
Santiago said that a prior similar case in 2009, which ended in the promulgation of a Supreme Court judgment in Nicolas v. Romulo, ended in a debacle. In that case, RTC Makati found U.S. Lance Corporal Daniel J. Smith guilty of rape. However, DILG agents took Smith out of the Makati jail and brought him to the U.S. embassy in Manila under the Romulo-Kenny agreement.
Eventually, the Court of Appeals acquitted Smith, after the victim submitted a letter recanting her allegations.
Santiago told reporters that unlike the VFA, the present EDCA does not contain provisions on jurisdiction and custody over U.S. military servicemen who have committed crimes in Philippine territory.
“Presumably, the U.S. military authorities will invoke the terms of the VFA in the transgender case. This is one more reason why we should terminate the VFA,” she said.
In 2009, Santiago sponsored a “Resolution expressing the sense of the Senate that the Department of Foreign Affairs should seek to renegotiate the VFA with the U.S., and in case of denial should give notice of termination of the VFA.”
In her 2009 sponsorship speech Santiago said the VFA should be terminated for the following reasons:
- The VFA violates the Philippine Constitution, which provides that the U.S. as the other contracting state should have recognized the VFA as a treaty, not as a mere executive agreement.
- The VFA, to use a constitutional law term, is void for vagueness, in that it fails to define the crucial terms “visit”, “temporary,” and “activities.”
- The Supreme Court opinion in the 2009 case of Nicolas v. Romulo suffers from doctrinal confusion. The Nicolas majority opinion claimed that the VFA was submitted to the U.S. Senate. This is misleading. The VFA was submitted as a compliance with an American law called the Case-Zablocki Act. This Act requires the U.S. President, through the Secretary of State, to transmit to the U.S. Congress, the international agreements entered into by the U.S. government, or by its officials or agencies, which are not characterized as treaties. Thus, the U.S. government does not characterize the VFA as a treaty. Therefore, the VFA, since it does not comply with the requirement of the Philippine Constitution, is unconstitutional and void in our country.
- American military forces constitute so-called forward operating bases under cover of the VFA. These bases are not limited to training and capacity building. They go further by allegedly providing “logistical and intelligence support.” This term is so broad that under U.S. interpretation, it allows actual immersion in combat operations.
- Only the preamble, not the text, of the VFA mentions the ancient Mutual Defense Treaty, which does not even provide for automatic U.S. help in case of actual attack on the Philippines.
- The alleged financial benefits under VFA for the most part constitute U.S. military junk.
- The VFA is a failure, because after 10 years, the AFP has not modernized sufficiently to keep up with our Asian neighbors, and the terrorist groups are still active.
Santiago made the remarks at a press conference with the Senate media after a speech on how to improve the implementation of the RH law, at the auditorium of the Philippine Christian University, attended by university students and sponsored by the Catholics for RH.