THE LAUDE SCANDAL AND THE UNEQUAL TREATMENT
OF PARTIES IN THE VFA
By
SENATOR MIRIAM DEFENSOR SANTIAGO
(Paper read as chair of the Senate foreign relations committee at the public hearing
on the murder case against a U.S. marine on 22 October 2014, at Senate committee room 3.)

This is an inquiry in aid of legislation. Conceivably, the legislation will consist of a resolution expressing the sense of the Senate on the issue of whether the RP-US Visiting Forces Agreement, which the Senate ratified in 1999, has lost its raison d'etre, or reason for existing, in 2014. The VFA is 15 years old, and has given our country much grief.

The present crisis in Philippine foreign policy has been ignited all over again by what appears to be the murderous acts by an American marine against a Filipino transgender. She was apparently engaged in sex work in Olongapo City, where the marine's ship is docked.

But we re-examine the VFA, not only in the light of crimes of passion that the VFA has engendered, but also and most importantly, in the light of global political developments that include: the ISIS challenge in the Middle East; the dispute between China and certain Southeast Asian nations like the Philippines over sovereignty in the West Philippine Sea and adjoining maritime territories; and the outstanding U.S. debt to China of some $1.27 trillion.

The VFA is a historic document of inequity between a former colonizer and its former colony, which some global political analysts describe as "a failing state." The Philippines is failing, because it has never grown up. Never in the annals of modern political history has a country been so manipulated to serve the interest of another, and taught to be so ironically grateful for such an inequitable relationship. We are a stillborn state, because our umbilical cord with the United States has never been cut. Cut and cut cleanly, so that we can revive this infant in the family of nations.

Under the VFA, the Philippines has primary jurisdiction over the marine involved, because the murder took place in Philippine territory, and constitutes a crime under the Philippine Penal Code. Jurisdiction is the government's general power to exercise authority over all persons within its territory. Custody is a component of jurisdiction, and means the care and control of a person involving his or her security.

If the Philippines has primary jurisdiction, then it follows that the Philippines should have custody. But this logic is spurned by the VFA. (Slide 1). Under Article 5, Section 6, if U.S. military authorities make a request, then custody shall immediately reside in the U.S. However, if the Philippines considers an incident as an extraordinary case, then the Philippines can request for custody, but the U.S. government, under the VFA, will merely take the request into full account.

This gross inequality is the elephant in the room. (Slide 2). Hence, five years ago, as chair of the Legislative Oversight Committee on the VFA, I successfully sponsored a Senate resolution to either renegotiate or terminate the VFA, for the reasons I listed. (Slide 3).

The suspect, whose name is Private First Class Joseph Scott Pemberton, is currently at the Joint U.S. Military Assistance Group compound in Camp Aguinaldo. It appears that on a Saturday, October 11, he met up in a bar with Filipino groupies, among them Jeffrey "Jennifer" Laude and her sister Michelle Laude. Pemberton was wearing black short pants, indicating his desire to find some wild fun in the old town.

He and Jennifer, accompanied by the latter's friend Mark Clarence Gelviro, proceeded to a motel, where Jennifer shooed Gelviro away. The couple checked in with the motel cashier Elias Gallamos. After a few minutes, Pemberton walked out of the motel without settling his bill. Hence, motel employees hurried to check his room, where Gallamos found Jennifer dead. Naked, her head had been shoved inside the toilet bowl. Her body reportedly bore marks of serious physical injuries. The autopsy report described the cause of death as "asphyxia by drowning."

Jennifer's family filed a murder complaint against Pemberton in the Olongapo city prosecutor's office. The practice is for the parties to exchange affidavits, and then the prosecutor issues his resolution. Usually, the two antagonistic parties subscribe their affidavits in person before the prosecutor. If Pemberton refuses to avail of his personal right to a preliminary investigation, then he is considered to have waived his right. This is the ruling in the 1991 case of People v. Lazo.

Under the Rules of Court, Rule 112, Section 3, paragraph (d): "If the respondent is issued a subpoena but does not submit counter-affidavits within the ten-day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant."

If the prosecutor resolves to file a complaint for murder in court, warrant of arrest will issue against Pemberton. In the ordinary course of events, he will be arrested and detained in city jail, or, in the language of the VFA, "in facilities agreed on by appropriate Philippine and US authorities."

Hence, under the VFA, custody belongs to the Philippines. If there is any problem, it arises from the iniquitous language of the VFA. Unless the preliminary investigation and trial show otherwise, a U.S. marine has committed murder in cold blood on a Filipino. And yet some Filipinos prefer to gloss over this sorry record of atrocities committed against civilians by American servicemen, because of paranoia stemming from the fear that our country will become a "failed state," if we distance ourselves from American foreign policy.

But the record shows that the United States abhors the responsibility that comes with continuing to suckle the Philippine infant at the American breast. Here are the reasons for terminating the VFA:

1. The VFA does not imply that the U.S. will come to our aid, in case of a firefight with China over the West Philippine Sea. On the contrary, in 2013 then U.S. secretary of state Hillary Clinton said that the U.S. would be neutral. In 2014, when President Obama visited Japan, he categorically declared that the U.S. will defend the Japanese claim over the Senkaku islands. By contrast, the U.S. then repeated that it "will not have a position in regard to the disputed territories in the South China Sea." Bahala na tayo.

2. As a perceived military ally, the U.S. is impecunious. The American economy suffered a crisis in 2007, compelling a reduction in the military budget and incurring a national debt of $1.27 trillion to China. Ang laki ng utang, paano makikipay-away sa inutangan niya?

3. President Obama's "pivot to Asia" has been drowned by the violent resurgence of the ISIS challenge in the Middle East, particularly in Iraq and Syria, as well as Russian adventurism in Ukraine and the Crimean Sea. Wala tayong halaga sa ngayon sa Amerika.

If we are afraid of the designs against us by China and its 1.7 billion people, then let us not hide under the umbrella of the VFA. It is no protection against the tsunamis that engulf us. Instead of military confrontation, let us turn to economic diplomacy with China. After all, our Constitution allows 60 percent Filipino-owned corporations to enter into up to 50-year agreements with foreign partners to explore, develop, and use our natural resources, specially oil, gas, and deep-sea minerals below the West Philippine Sea.

I humbly submit that the US should respect the Philippine judicial process and refrain from flirting with the issue of the West Philippine Sea, using such blandishments as increasing ship calls in the various ports of the Philippines, Vietnam, South Korea, and Japan. Despite some timid Filipinos, let us assert our sovereignty and refuse to become a "failed state."