VFA and the Issue of Custody

by Evalyn G. Ursua

Posted at Oct 22 2014 03:06 PM | Updated as of Oct 23 2014 12:16 AM

(Evalyn G. Ursua, LLB (UP), LLM (NUS), MSt (Oxford, Cand.) is former counsel for Nicole in People v. Smith (2006) and Nicolas v. Romulo (G.R. No. 1758888, February 11, 2009). She contributed this article before US Marine Pfc. Joseph Scott Pemberton was transferred in the morning of Oct. 22, 2014 from the USS Peleliu in Subic Bay to an airconditioned 20-footer van inside the Mutual Defense Board Engagement Facility in Camp Aguinaldo. -- Eds.)

The murder of Jennifer Laude on October 11, 2014, allegedly by Private 1st Class Joseph Scott Pemberton of the U.S. Marines, brings up once more the sensitive issue of custody of a U.S. serviceman accused of committing a crime against a Filipino within Philippine territory under the Visiting Forces Agreement between the Philippines and the United States (VFA).

This article discusses the pertinent provisions of the VFA on the issue of custody, and how the Philippine and U.S. governments dealt with the issue in the Nicole case (People v. Daniel Smith, Makati Regional Trial Court, 2006 and Court of Appeals, 2009; Nicolas v. Romulo, Supreme Court, 2009), involving a complaint for rape that happened on November 1, 2005. It relates that previous experience to the current controversy over the custody of Pemberton.

I. Criminal Jurisdiction and Custody

The custody of any U.S. serviceman accused of committing a crime against a Filipino within Philippine territory should be with Philippine authorities from the time the case is filed with the court. This position is based on (1) an integrated reading of the pertinent provisions of Article V of the VFA on criminal jurisdiction; (2) the Senate Resolution of concurrence (No. 18) to the VFA; (3) the records of the Senate deliberations on the VFA; (4) Opinion No. 094 of former Department of Justice (DOJ) Secretary Serafin R. Cuevas; and (d) DOJ Circular No. 91.

In the Nicole case, Philippine authorities exercised jurisdiction in accordance with Article V, paragraph 3 (a) of the VFA, which gives the Philippines primary jurisdiction over offenses such as rape committed by U.S. soldiers within Philippine territory. Since the Philippine Government was the undisputed authority exercising jurisdiction, the accused Daniel Smith should have been handed over by the U.S. Embassy to Philippine authorities. He should have been in Philippine custody throughout the judicial proceedings, including on appeal, in accordance with paragraph 4 of Article V of the VFA, which reads:

        4. Within the scope of their legal competence, the authorities of the Philippines and the United States   shall assist each other in the arrest of United States personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.

This is consistent with the basic rule in criminal law that custody of the accused is an essential part of jurisdiction. Article V of the VFA on criminal jurisdiction reflects this basic concept.

However, while Daniel Smith attended court hearings, he was never arrested nor did he surrender to Philippine authorities. He never applied for bail nor did he post bail. (Bail was not a matter of right in the crime of rape with which he was charged). He was in the custody of the U.S. Embassy while his case was being heard, in the premises of the U.S. diplomatic mission that is inviolable under international law. He was never under the effective custody or control of Philippine courts except for a brief period, post-conviction, when he was detained in the Makati City jail.

In the Nicole case, the U.S. Embassy claimed that custody resides with U.S. authorities under paragraph 6 of Article V of the VFA, which reads:

        6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings…. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account.

The U.S. Embassy invoked solely paragraph 6 to support its position, ignoring completely other related paragraphs of Article V, specifically paragraphs 4, 9 and 10. Paragraph 4 provides that “the authorities of the Philippines and the United States shall assist each other in the arrest of United States personnel in the Philippines and in handing them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.” Paragraphs 9 and 10 contemplate United States personnel being detained, taken into custody and prosecuted by Philippine authorities, so much so that they are accorded rights such as confinement in agreed facilities, visits and material assistance by U.S. authorities, among others.

Based on the language of paragraph 6 of Article V, custody of any U.S. personnel charged with the commission of an offense cognizable by Philippine courts shall vest with U.S. authorities only ‘if they so request.’ The U.S authorities have to make a request for them to have custody because it is their duty under paragraph 4 of Article V to turn over their personnel charged with committing a crime to Philippine authorities who will exercise jurisdiction.

In the Senate deliberations on the VFA on May 10, 1999, the late Senator Ople explained that the duty to turn over custody to the U.S. Government upon request is not ministerial. It may be refused.

        Senator Cayetano. That is quite obvious, Mr. President. Based on historical record and based on the language of this paragraph (6), it is quite obvious that the United States will insist on having custody. I am just wondering again if there is any occasion or instance where custody, in spite of the language, would reside with the Philippines. This is custody, of course, of American personnel accused of crimes committed in the Philippines.

         Senator Ople. Yes. In the first place, we do not surrender custody except upon request. Of course, this request must be evaluated and, therefore, at no point do we relinquish our effective control.

         Senator Cayetano. Thank you, Mr. President.

         With due respect to the good sponsor, I think the language of paragraph (6) states quite clearly that once requested, the custody of accused US military personnel will reside with the United States.

         Senator Ople. There must first be a request from the United States, subject to evaluation and determination by the Philippine side.


Also, Opinion No. 094 (August 10, 1998) of former DOJ Secretary Serafin Cuevas states that ‘in extraordinary cases or cases of particular importance,’ the Philippines ‘may deny the US request for custody’ and even ‘demand to retain custody of the US offender.’ This means that the Philippine Government can also assert its right to custody over an accused U.S. serviceman in case such custody is wrongfully withheld from it.

Cases ‘of particular importance’ and ‘extraordinary cases’ where the Philippine Government may refuse a U.S. request for custody are defined in the Senate Resolution of concurrence (No. 18) to the VFA and DOJ Circular No. 91. Both documents list heinous crimes as defined and enumerated in Republic Act No. 7659. Rape and murder, and non-bailable crimes in general, are included in those crimes.

What happened in Nicole’s case was a complete deviation from how arrest and detention should proceed under the VFA. To reiterate, when Philippine authorities exercise jurisdiction, custody should be with them, and it is only upon request by U.S. military authorities that they may acquire custody over the accused, subject to the denial of such request by Philippine authorities. In the Nicole case, the Philippines never had custody over Daniel Smith from the start until the end, except for a brief period when he was detained in the Makati City Jail after the trial court convicted him. It was our Department of Foreign Affairs that made a formal request to the U.S. Embassy for the latter to transfer custody of the accused to the Philippine Government. This was made on November 15, 2005 through the Department of Foreign Affairs Note No. 05-2662, which reads:

        Pursuant to the exercise by the Philippines of its primary right of jurisdiction over the case as conveyed through this Department’s Note Verbale No. 05-2579 and in view of the non-receipt of a formal request for initial United States’ custody over the United States military personnel involved in the alleged rape relative to Article V, Paragraph 6 of the Agreement and the extraordinary nature of the case, being a heinous crime, the Department requests the Embassy of the United States of America to turn over custody of said U.S. military personnel to Philippine authorities as soon as practicable.

         Mindful of Article V, paragraph 10 of the Agreement which states that the confinement or detention by Philippine authorities of the U.S. military personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities, this Department and the Philippine Department of Justice look forward to discussions with the Embassy on arrangements on said confinement or detention.

The U.S. Embassy denied this request two months later through its Note Verbale No. 0060 dated January 16, 2006 where it asserted that “the U.S. Government shall continue to exercise custody until completion of all judicial proceedings, as provided for by Article 5, paragraph 6 of the Visiting Forces Agreement.” This Note Verbale did not amount to a request contemplated under paragraph 6 of Article V. First, the Note was given in response to the DFA’s request for custody. Second, the Note could not have been intended to be a request for custody which was with the U.S. authorities from the start.

The DFA responded to the U.S. Government’s breach of its duty to turn over the accused to the custody of the Philippine authorities under the VFA through its Note Verbale No. 06-0103 dated January 17, 2006. In it, the DFA did not interpret Note Verbale No. 0060 as a request by the U.S. to have custody of Smith. Instead, the DFA conveyed to the U.S. Government that the crime of rape is an ‘extraordinary case’ within the meaning of the VFA and that such was the intent of the Philippine Government when it agreed to the formulation of paragraph 6, Article V. It reiterated ‘the position of the Philippine Government’ that was conveyed through the Department’s Note No. 0502662 dated November 16, 2005, where it requested the U.S. Embassy to “turn over custody of [the] U.S. military personnel to Philippine authorities as soon as practicable.” The DFA went on to say that:

        The Philippine Government is seriously concerned over the patent disparity in the treatment of US Military personnel in other countries on the issue of custody in criminal cases.

All these notes verbale were never made public. In fact, the public statements of the Philippine authorities contradicted the position it had taken in its notes verbale to the U.S. Embassy. After the exchanges of notes verbale, the Philippine Government did not pursue the matter of custody any further and allowed the U.S. Embassy to retain custody of Daniel Smith throughout the judicial proceedings before the Makati court.

On December 4, 2006, immediately after the reading of the judgment of conviction against Daniel Smith, PNP officers engaged in a very public and scary physical tussle with the U.S. security personnel inside the courtroom over the physical custody of Daniel Smith, which led to a car chase all the way to the Makati City Jail. Finally, Daniel Smith was in Philippine custody. However, 25 days later, on a Philippine holiday (December 29, 2006) and in the dead of night, Philippine authorities spirited Daniel Smith from the Makati City Jail and brought him to the U.S. Embassy. The transfer of Daniel Smith to the U.S. Embassy was pursuant to two agreements entered into earlier by U.S. Ambassador Kristine Kenney and DFA Secretary Alberto Romulo, on December 19 and 22, 2006. In the first agreement, the officials agreed that Smith will be returned to U.S. military custody at the U.S. Embassy, and in the second, they stipulated that he will be detained in a specified room inside the U.S. Embassy to which the Philippine authorities will have access. The Supreme Court nullified those agreements in Nicolas v. Romulo where the Supreme Court held:

         the Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court.


Before the parties could comply with the Supreme Court directive, the Court of Appeals acquitted Daniel Smith on April 23, 2009.

The case of Jennifer Laude: a 180-degree turn on the custody issue

In Jennifer’s case, the DFA has said it would only request for custody of Pemberton from the US once a court has issued a warrant for his arrest. But according to the DFA spokesperson Charles Jose, “there is no guarantee that they (US) will grant our request” (Matikas Santos, “Pemberton subpoena delivered to US Embassy,” PD1, 17 Oct. 2014). In fact, the Philippine government says it is unlikely that the Philippines will get custody. To be sure, these statements are based on the Philippines’ experience in the Nicole case. They manifest the weakness of the Philippines in asserting full jurisdiction over criminal cases like Nicole’s and Jennifer’s, and the apparent lack of good faith on the part of the U.S. in complying with its obligations under the VFA. That the Philippines has to ‘request’ for custody is an anomaly given that, as discussed above, the Philippines has the right to have custody once a criminal case has been filed in court.

Most disturbing is the fact that, based on the DFA pronouncements, the executive branch appears to have abandoned its previous position in the Nicole case about the issue of custody. As reported in the papers, the position of the executive branch now completely follows that of the U.S., that the “U.S. government will have custody of any U.S. personnel who has committed an offense because of the first sentence of Article V, Section 6 of the VFA” (Matikas Santos, “ICYMI: Understanding the VFA after transgender slay,” PDI, Oct. 14, 2014) and that “under the provisions of the Visiting Forces Agreement (VFA), [the] US automatically has custody of any of their personnel suspected of committing a crime” (Matikas Santos, “No guarantee PH can get custody of US Marine in transgender slay—DFA”, PDI, Oct. 14, 2014).

The Philippine Daily Inquirer quoted the position of Eduardo Oban Jr., the executive director of the Presidential Commission on the Visiting Forces Agreement, that “the phrase ‘if they so request’ would apply if the suspect was initially under the custody of the Philippine government.” He also reportedly said that “the Philippines cannot deny a request from the US for custody” (Matikas Santos, “ICYMI: Understanding the VFA after transgender slay,” PDI, Oct. 14, 2014). This is contrary to the intent of the Philippine Government when it agreed to the VFA, and of the Philippine Senate when it gave its concurrence to the agreement.

Abrogation or Amendment of the VFA

The unending controversy over the issue of custody speaks of a flaw in the language of Article V, paragraph 6, which has been interpreted in conflicting ways. The U.S. has consistently cited this paragraph as giving it custody over any accused U.S. serviceman until all court proceedings are completed, including appeal. On its face, without a careful and integrated reading of Article V and reviewing the history of its paragraph 6 including the legal documents related to it, Article V, paragraph 6 can be twisted to accommodate the U.S. interpretation.

If the government will not abrogate the VFA, it should, at least, fix the provisions on criminal jurisdiction, particularly its Article V, Section 6, to express in clear and unambiguous language its intent, as understood by the Philippine Government, including the Senate, at the time of its consent to the VFA. However, there is no provision in the VFA that allows amendment of its provisions. It only talks of termination under Article XI, by either party giving notice to the other party that it desires to terminate the agreement.#

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