The real work begins

Lucid Interval : The real work begins

First posted 03:46am (Mla time) Jan 03, 2006
By Rowena Guanzon
INQ7.net

It closed the year 2005, opened 2006 and it looks like the rape case of a 22-year old Filipina in Subic will be a story that will run throughout the year. Not only because the court only has 365 days from the time of arraignment (according to the Department of Justice, although it can be argued that the period runs from the time the summons was issued by the City Prosecutor) to finish the judicial proceedings or the four accused are free to leave the Philippines pursuant to the Visiting Forces Agreement (VFA). The one year period does not include the time spent while the case is on appeal (Article V, Section 7, VFA).
The Olongapo City Prosecutor has filed in court the Resolution stating that there is probable cause to charge the four US Marines with rape. Unlike in Okinawa and in the US where rape is punished with less than 10 years in prison, in our country the penalty for rape is reclusion perpetua, or up to 40 years. It is not a bailable offense. The penalty is death if the complainant is infected with HIV AIDS, or if the accused used a deadly weapon or is the ascendant or step-parent of the victim, among others. The judge of the Regional Trial Court of Olongapo City will issue a warrant of arrest probably today.

Then the real work begins. The objective of the prosecution is to convict all four accused, and ensure that they are under the custody of the Philippine authorities to stress our country’s sovereignty and the jurisdiction of our courts over the accused, as well as to ensure that they do not flee. But the prosecutors of Olongapo City must be confused each time their boss, the Justice Secretary, issues a statement that does not help their case. The public prosecutors have stated that they will prosecute the case, which diminishes the role of the private prosecutors as “assisting” counsel. I certainly hope that the public prosecutors of Olongapo City have had sufficient training in gender sensitivity in handling rape cases, a subject which the private prosecutors are familiar with. But this is the public prosecutors’ shining moment, and since the whole country is watching, it is likely that they will do their best.

To those who are not familiar with criminal procedure in the Philippines, the complainant can hire her lawyers as private prosecutors even if the case is being prosecuted by public prosecutors. The standing of private prosecutors is based on the complainant’s claim for moral damages, other damages and costs, which is deemed instituted in the criminal action. The public prosecutors, however, have control over the case and can overrule the judgment of the private prosecutors.

The hottest issue in this case so far is the issue of custody and detention of the accused. Justice Secretary Gonzalez, whose statements in the media are surely being read by judges, said in the Philippine Daily Inquirer the other day that before the warrant of arrest can be served, the Philippine government must first request that custody of the accused be turned over by the US government, and not doing so would risk a unilateral abrogation of the Visiting Forces Agreement (VFA). His statement is incorrect. If this is true, then the warrant of arrest may not be served at all since the US has no obligation to agree to relinquish custody of the accused. There is no provision in the VFA which supports Secretary Gonzalez’ apprehension. In addition, under Article V, Section 7 the VFA, “Within the scope of their legal authority, United States and Philippine authorities shall assist each other in the carrying out of all necessary investigations into offenses and shall cooperate in providing for the attendance of witnesses and in the collection and production of evidence, including seizure and, in proper cases, the delivery of objects connected with an offense.” If the US government is in good faith, this provision clearly gives them the duty to cooperate so that the warrant of arrest can be served, even if the accused are still in their custody.

The Supreme Court has held that the Visiting Forces Agreement is a treaty, but it was ratified by the Philippine Senate. Under the Constitution, treaties which bind the Republic of the Philippines are part of the laws of the land, and it is true that the courts must take judicial notice of these treaties. But the interpretation of laws rests on the shoulders and the mind of the presiding judge, not on the Secretary of Justice. There shouldn’t be any issue on the location of the detention of the accused because is spelled out in the VFA, which provides that, “The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities.”

However, this provision can create a problem because it does not expressly state that the detention facility be located in the Philippines. It only states that the place of detention by agreed upon by the US and Philippine authorities. This is where the independent judicial power of the trial court judge will stand a test. The presiding judge could order the accused arrested and then the diplomatic problems will fall on the lap of the VFA Commission, or the judge could order that the accused be detained in a facility which will be determined by the US and Philippine authorities but within the Philippines. Whatever the judge will order will be have to be obeyed by the US government and the Philippine authorities, before the accused avails of other legal remedies.

There was no problem like this in Okinawa, Japan, where two rape cases were filed against U.S. servicemen. In both cases, the accused were convicted. All the accused in Okinawa were detained in Okinawa while the trial went on. So why is there such a big fuzz in this country?

The Americans are not the ones talking. It’s our Justice Secretary who is doing the talking for them.

This entry was posted on Wednesday, January 4th, 2006 at 6:14 am and is filed under INQ7 Columns. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.