I am in Olongapo City standing as lawyer for the Laude family in connection with the gruesome murder of Jennifer.
To set the record straight, I “did not volunteer” my services to the family. A couple of months back, we had a training here in Subic jointly sponsored by the American Bar Association and the defunct AustAid on victim’s rights advocacy. The said training was intended primarily for civil society organizations so that they will know what to do in case there is a case of extralegal killing or torture in their community. That training had members of the Kilusan Demokratikong Pilipino and the women’s group KAISA-KA, the same group also advocating the cause of the last remaining comfort women in Pampanga, in attendance. So when Jennifer’s killing became public in Olongapo, both civil society groups lost no time in assisting the family in taking steps that the proper investigation of the crime take place. Kudos to them, we now have at least three eyewitnesses who can testify that Jennifer was last seen in the company of Pemberton in the crime scene. It was also civil society that alerted police authorities about the occurrence of the crime, which led to the timely investigation by the SOCO of the PNP led by Maj De La Torre.
Yesterday, we filed the criminal compliant that would trigger the process of preliminary investigation to begin. We had doubts about whether the proceedings could move forward given that the Respondent, PFC Joseph Scott Pemberton, is still in the custody of his American superiors. We asked ourselves: where would the Prosecutor serve him with notices for preliminary investigation? We indicated the name of his ship. In reality, no process server from the DOJ could board the vessel since it is an American warship.
So the Laude family is now in a quandary. While their filing of the criminal complaint triggers the legal process, how could it proceed without Philippine custody over the person of the Respondent?
Apparently, the Daniel Smith precedent was different. There, Smith was immediately made available to Philippine authorities for purposes of attendance in all proceedings as soon as he was identified. But for some reason, this has not happened to Pemberton. His identity was ascertained as of last Monday at the latest, and yet until today, Thursday, US authorities have not made him available for investigation purposes. Could it be that US authorities are contemplating of exercising jurisdiction over him since murder as a hate crime against a transgender relates as well to the discipline of its troops? If this is so, this is worrisome since unlike the case of Smith, American authorities may not have Pemberton available to Philippine authorities altogether.
For the record, we decided to still press charges as of last night since this will at least inform the entire nation that the ball is now in the hands of the Philippine government. The most that the victims can do under the circumstance is to commence with the filing of complaint to trigger the preliminary investigation. Unfortunately, the victims are powerless to compel US authorities to have their soldier available to attend the proceedings. We filed nonetheless at least to illustrate exactly how the VAF offends Philippine sovereignty and jurisdiction. For while Philippine laws were breached and despite the fact that the Victim was a Filipino killed in his own country, our legal system appears to be powerless against the person of a US serviceman.
The consolation is that at least, DFA Secretary Del Rosario, unike the Department’s spokesperson, has articulated the correct interpretation of the VFA. That is, Philippine authorities should have custody over non-service related crimes committed by US servicemen under extraordinary circumstances. I join Sec Del Rosario that a murder committed as a hate crime against a transgender, suffices to qualify as an “extraordinary” circumstance to warrant Philippine custody over Pemberton.
In any case, the brutal killing of Jennifer, a apparently from drowning in a toilet bowl, should be a wake-up call to all Filipinos that the VFA, and the EDCA will never serve the Filipino interest. Unless we abrogate the VFA and reject the EDCA, more Filipinos will suffer the fate of Jennifer: victimized my bigoted US servicemen and yet denied an adequate domestic remedy.
My promise though is when we fail to get justice for Jennifer and the nation before Philippines courts, we will pursue the killer before foreign courts wherever the bigoted killer may be. Meanwhile, we should unite as a nation and assert our sovereignty: Junk the VFA! Junk the EDCA!