This story
was taken from Bulatlat, the Philippines's alternative weekly
newsmagazine (www.bulatlat.com, www.bulatlat.net, www.bulatlat.org).
Vol. V, No. 49, January 22-28, 2006
Lawyers on
Subic rape case:
With the failure to serve the
warrant of arrest to the four U.S. Marines accused of raping a Filipino woman,
just where is the Subic Rape Case heading? Lawyers said that it is going nowhere
and as early as now, justice for the rape survivor is being denied.
BY DABET CASTAÑEDA The Subic Rape Case is
going nowhere. Two lawyers denounced the
City Prosecutor of the Olongapo Regional Trial Court (RTC) and the Department of
Justice (DoJ) for failing to serve the warrants of arrest to the four U.S.
soldiers accused of raping a Filipino woman inside the Subic Bay Freeport in
Olongapo City (126 kms. from Manila) in November last year. “How does the court intend
to proceed?” asked Atty. Evalyn Ursua of the Women's Legal Bureau (WLB). She
said serving the warrant of arrest is an "essential and indispensable
requirement" to have jurisdiction over the "person of the accused." It is only
when the warrant is served and officially received by the accused that the court
can exercise jurisdiction in a criminal case. The court can also proceed to
arraignment, she added. In Philippine laws, rape is
classified as a crime against persons (Sec 2, Republic Act No. 8353 or the
Anti-Rape Law of 1997) or a public crime. It is a criminal case punishable by
life imprisonment or the death penalty, depending on the gravity of the
circumstances of the case. On the other hand, Counsels
for the Defense of Liberties (CODAL) Spokesperson Atty. Neri Colmenares said in
a statement that unless the accused surrender to the court or are arrested, no
court could try the rape case for failure to have jurisdiction over the accused.
He added that 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.” Custody required Through a note verbale,
the U.S. rejected last January 16 the Department of Foreign Affairs' (DFA)
request for custody of the four accused U.S. soldiers. Under the 1999 U.S.-RP
Visiting Forces Agreement (VFA), the U.S. gets automatic jurisdiction over
erring U.S. soldiers and the Philippines needs to make a formal request for
jurisdiction over them. Olongapo RTC (Branch 73)
Judge Renato Dilag, to whose sala the case would be tried, told the media
however that the failure to serve the warrants of arrest should not delay the
case. He claimed that the defense and prosecution lawyers accepted his position
on the matter, adding that the defense lawyers made a commitement to present the
accused whenever they are required in court. However, if the four
accused U.S. soldiers remain under the jurisdiction of the U.S. Embassy in the
Philippines, Ursua said they could never be “deemed to have surrendered” because
“we do not have jurisdiction over the U.S. Embassy.” Furthermore, Ursua said it
is imperative that the accused be in the court’s custody. Although it is not
necessary that the accused be in the physical custody of the court, she said
that the four U.S. soldiers should be detained by Philippine authorities whether
in municipal or regional jails or any designated detention centers. She added that as a matter
of procedure, the Philippine authorities or law enforces (in this case, the
police) should report to the court that the warrants have been served, after
which the accused will be detained. “That’s the only time the court could say it
has acquired jurisdiction over the accused,” Ursua said. “In this case, the
court has not acquired jurisdiction over the accused because it has not served
the warrants.” Ursua said that the case
could be archived because it could not proceed to arraignment. At the mercy of the U.S. “The VFA has rendered the
anti-rape law useless,” Ursua said. “It cannot be enforced because the arrests
have not been made.” She said that the country
may have a very good law that criminalizes rape but it cannot be enforced
because government officials insist on complying with the VFA. As a result,
Ursua said that the country is deemed to be “at the mercy of a foreign
government complying with the provisions of a stupid agreement.” Jurisdiction should not be
disassociated with custody because the latter is essential in the effective
exercise of jurisdiction, Ursua added. No to VFA and proposed
replacement Meanwhile, the progressive
women’s group Gabriela assailed the government for implying to replace the VFA
with the SOFA (status of forces agreement) wherein which the host country has
provisions for custody of any U.S. servicemen accused of a crime. Gabriela Secretary General
Lana Linaban said that although her organization calls for the abrogation of the
VFA, it does not want any military agreement to replace it. “Ang pagbabasura sa
VFA ay hindi dapat itali sa isyu ng custody lamang,” (The reason
for the junking of the VFA must not only be the issue of custody.) she said,
clarifying that the VFA's repeal will not put a stop to crimes against women and
children and other human rights violations. Apart from being one-sided,
Linaban said the VFA and other military agreements with the U.S. consist of
provisions that primarily serve U.S. interest in using Philippine soil as its
launching pad for its “terrorist attacks.” “Ang VFA ay lalong
nagbubukas sa ating mamamayan sa iba’t-ibang pang-aabuso ng U.S.,” (The VFA
will further make our people vulnerable to various abuses of the U.S..) she
said. Ursua, however, warned that
the nullification of the VFA now could also work against the Subic Rape Case.
She said it is possible for the U.S. government to ship out the four accused
once the VFA is abrogated. This situation magnifies the urgency to serve the
warrants of arrest to the four U.S. soldiers so that the court can have
immediate jurisdiction over them. Bulatlat © 2006 Bulatlat
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`Without Warrant, Trial of Four US Soldiers Cannot Proceed'
Bulatlat