Press Release
October 22, 2014

Transcript of media interview with Sen. Miriam Defensor Santiago

Sen. Miriam Defensor Santiago: This is an inquiry in aid of legislation. The proposed legislation is I will introduce a resolution which I actually introduced five years ago, and the resolution was entitled "Resolution to Renegotiate or Terminate the VFA." I'm proud to say that five years ago, when I filed the resolution and defended it on the floor of the Senate, the Senate subsequently passed the resolution.

So we've already had five years for the two parties to renegotiate and in fact there is an ongoing panel headed by the executive secretary that is charged with this task. But it has never been renegotiated. It is time that the executive department of the government heeded the call of the legislative department to renegotiate this--or what some senators call review. There's a review panel ongoing but they're not reviewing it, much less renegotiating it.

You see from today's hearing that not only is the crime of shocking cruelty, but at the same time, there is apparently no countervailing evidence because we haven't received the counter affidavit of the American marine. He is now in the custody of Camp Aguinaldo.

What strikes me as offensive is that although he is in a so-called detention facility, which is I think a van inside the military camp, he is being guarded by Americans. What for? What is he being guarded for? There are Filipino members of the Armed Forces who are already guarding the premises.

I find that offensive to us, because it indicates that there is no trust on the capability of our own Armed Forces. If we did this in America, if, for example, there was a Filipino who was in a detention facility there by joint agreement of the two governments, and there were already American guards, can we insist that there be Filipino guards there? I find that unacceptable.

In any event, it appears now, from the point of view of a trier of facts, that the crime was committed with extreme cruelty. It automatically elevates the killing from homicide to murder. I hope very much that the respondent, Pemberton, will submit his counter-affidavit because under the law, as ruled by the Supreme Court, if the respondent fails to file his counter affidavit, then he is considered to have waived it and the prosecutor is free to consider only the evidence presented by the complainant. We've already presented eye witnesses today. One is covered up because he has been admitted to the Witness Protection Program. We've also heard from no less than seven representatives of NGOs who were all for the abrogation of the VFA.

On whether to file a criminal or civil case:

Meron kayong karapatan na magsampa hindi lamang ng kasong kriminal kundi pati ng kasong sibil, para pagbayarin itong Amerikano ng halagang pera para doon sa pagkamatay. So you are entitled to file both criminal and civil cases. I just want you to know that.

Would you say that the Philippines has full custody of Pemberton? I don't consider that full custody because the Americans are guarding him and the Filipinos are guarding the Americans--not in the sense that they are surveilling them and making sure they are following the rules, but keeping them safe from harm.

Ano pong masasabi niyo na nakakulong siya sa airconditioned facility?

That's exactly why they chose the JUSMAG detention facility. It gives special treatment if you relate the treatment to the treatment he would have received in an ordinary city jail in Manila.

There you can see already the discrimination bias of the VFA. For that reason, we are calling for the review of the VFA because these provisions are onerous. Talagang nang-aapi ng Pilipinas. Biro mo, nakalagay doon na if the United States requests custody, the VFA provides that the custody be immediately granted. Pero pag ang Pilipinas ang humingi ng custody ng Amerikano, ang nakalagay doon, hindi na immediately granted kagaya nang sa Amerika kung 'di the United States will take full account of the request. Magkaiba na antimano.

Yan ang problema kung bakit wala tayong custody sa kanya at binibigyan siya ng VIP treatment. I call that VIP treatment. He arrives in a helicopter, pagkatapos wala man lang nakakaalam sa atin kung ano ang proseso, bigla na siyang napunta doon sa airconditioned niyang van kasama ang mga kapanalig niya, mga kababayan niya.

May guwardiya na tayo, pero wala silang tiwala. Kailangan may sarili pa silang guwardiya. Sarili nating bansa ito eh, hindi naman ito Amerika. Kaya doon pa lang, dapat ay maghanda na tayo na gagawin ng Amerika ang lahat ng magagawa niya para mabigyan ng special treatment ang taong ito. Hindi iyan ang pakay ng Visiting Forces Agreement. Dapat sa VFA, ang dalawang bansa pareho ang pagtrato sa kanilang mga kababayan.

So I am going to file a resolution. In effect I will repeat a resolution I filed all of five years ago na wala namang nangyari. Napasa ng Senado pero wala namang renegotiation, much less any termination. Kaya naiintindihan ko kung bakit galit na galit itong mga NGO at gusto nang ipa-terminate ang VFA.

Tama po ba ang position ng gobyerno na kailangan pang hintayin ang warrant of arrest to gain custody?

Hindi tama 'yan kasi diyan pa lang sa VFA nakalagay na ang Amerika pwede siyang humingi ng custody from the time of the commission of the offense to the termination of the judicial proceedings. Umpisa sa pagkagawa ng krimen, hanggang sa matapos sa Korte Suprema, pati apela doon. Kaya kung ganoon ang pwedeng hingin ng Amerika dapat ganoon din ang pwedeng nating mahingi. Kaya hindi pwede 'yang rason nila na nagbibigay lang naman ng warrant of arrest pag nakapagfile na ng kaso ang piskal sa korte. Hindi pwede 'yong ganoon kasi nakalagay sa VFA na umpisa pa lang sa pagkagawa ng krimen, pwede nang hingin ng Amerika ang Amerikano. Eh di tayo ngayon ganoon na ang hingin natin. Pinagbigyan naman tayo pero special treatment pa rin.

As a trial judge, how would you assess the results of the medico legal report?

Well, sabi nga nila maghintay pa tayo ng final report nila. But first of all I find it prosecutorial in nature. It can be used as evidence for the prosecution. And it is almost damning, if I were RTC judge. Alam mo ang judge, hindi naman vacuum ang isip niyan eh. Habang naglilitis siya, nagpapalit-palit ang isip niyan eh. Eh kung ganyan ba namang ebidensya ang itambak sayo, mag-iisip ka na mukhang may kasalanan na talaga ito.

Is it right to say Pemberton used the condom?

Evidence shows that one condom was actually used for the purpose and the other was actually placed in position but it did not serve its function. We don't really know what happened.

What does the evidence say?

It's puzzling because, first of all, because of the fecal matter in the condom, it appears they had anal sex. Mukhang tanggap niya na lalaki ang kasama niya. Tapos ang pangalawa, wala na yatang laman ang condom kaya mukhang hindi natupad. Kaya hindi natin maintindihan ngayon kung bakit ganoon na lang ang galit niya, kung 'di dahil lasing siya.

Ngayon, sa ating Penal Code, alternative circumstance ang lasing. Kung minsan mitigating ito, kung minsan naman aggravating. Here it should be aggravating dahil sobra ang cruelty niya eh. Cruelty is a term used in our Penal Code.

At ang nakalagay lang sa media na she died by asphyxia by drowning. Lumalabas ngayon na nasakal pa pala siya. Lumitaw pa yung dila niya sa effort niya to catch her breath. Kaya baka namatay siya not by drowning but by strangling, which still falls under extreme cruelty.

Would you say na yung pagtransfer ay for show lang?

Bunga iyan ng diplomatic note na pinadala ni Secretary Albert del Rosario to the U.S. Embassy. Alam naman ng U.S. Embassy na hindi nila pwedeng paglaruan ang damdamin ng mga Pilipino katulad ng ginawa nila noon. Kung anu-ano ang pinagsasabi tapos bigla na lang nawala ang Nicole na 'yon at nasa Amerika na pala dahil binigyan nila ng visa. Ngayon, iba na. Because of technology, the Internet and globalization, iba na pakiramdam. Kaya you must credit the Americans for at least keeping their ears to the ground. Alam nilang hindi na pwede 'yong ganoon. Kaya sinurrender nila--although I don't know if you can correctly call it surrender--nilipat nila nang detention facility. But he's still feeling at home there, because it's air-conditioned at de-guwardiya pa siya. In other words, it's VIP treatment.

Do you think this will affect the Supreme Court case on the constitutionality of EDCA?

We don't really know. It's not exactly relevant. But you can't really tell what's going on in the mind of a Supreme Court Justice, although he or she will not reveal it in public.

Technically nakaninong custody si Pemberton ngayon?

I hesitate to say that he is in the custody of the Philippine government because there are American guards there, and this is a JUSMAG facility. JUSMAG is Joint U.S. Military Assistance Group. So let's just say that he is inside a military camp then draw your own conclusions there. But definitely, walang Pilipinong gumawa nitong ginawa niya na bibigyan ng ganoong pagtrato, kaya talagang kakaiba siya.

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