Statement on the Camp Aguinaldo MDB-SEB facility incident (Laude vs Pemberton)


References:
Atty. Harry L. Roque 09175398096
Atty. Romel Regalado Bagares 09328798422
 
Army Lieutenant-Colonel Harold Cabunoc, chief of Public Affairs Office of the Armed Forces of the Philippines (AFP) is mistaken that our client, Marc Sueselbeck, fiancé of murder victim Jeffrey “Jennifer” Laude, had violated Presidential Decree no. 1227, or the law punishing unlawful entry into any military base in the Philippines.
 
That law applies to a person “who, without express or implied permission or authority of the base commander or his duly authorized representatives, shall re-enter or is found within any military base after having been removed there from and ordered not to re-enter by the base commander or his duly authorized representative.”
 
In Mr. Suselbeck’s case, he, along with members of the Laude family, was allowed into the premises of Camp Aguinaldo, where the MDB-SEB facility — the detention area for PFC Pemberton — is located. Subsequently, he and Marilou Laude, a sister of the murder victim, entered the premises of the MDB-SEB in an angry bid to confront PFC Pemberton.
 
But PD 1227 applies only to a person who, having been removed from a Philippine military facility re-enters it or is found there yet again without proper permission from the base commander.
 
We do not wish to belabor this point any further, as the Laude family’s focus is on tomorrow’s funeral for their loved one.
 
We wish to inform everyone that a necrological service for Jennifer is scheduled tomorrow at 2 pm at the Columban Church in West Pinlac, Olongapo City. Afterwards, Jennifer’s remains will be laid to rest following a 3-kilometer march at the Heritage Memorial Park.
 
All Filipinos who love to see justice done in Jennifer’s case are welcome.

However, should Philippine authorities, at the behest of their American counterparts, charge and jail Mr. Sueselbeck because of what happened, certainly, the irony will not be lost on the Filipino people: here is a person seeking justice for someone he loves being placed behind bars while the very person accused of the murder remains outside the pale of Philippine law, and coddled by a government subservient to its foreign masters.
 
They should just as well charge and jail Jennifer’s sister Marilou, the complainant in the murder proceedings against PFC Pemberton, since she as well scaled the perimeter fence of the facility in search of justice for her murdered brother.
 
Our client Mr. Sueselbeck – while he regrets having been overtaken by emotion when he saw the US marines there mocking Ms. Laude – is ready to face the consequences of what he did.
 
Atty. Harry Roque, our lead counsel, beseeches “the understanding of everyone. Our clients are losing hope that justice will be served at all in the death of their loved one. Surely the armed forces understand their predicament.”
 
When we talked to Mr. Sueselbeck about this, he was very apologetic and told us he “just blanked out” and did not know the strength that suddenly seized him and propelled him to do what he did. He was overcome with anger when he saw US marines posted there laughing at Ms. Laude’s efforts to get inside the premises of the facility.
 
He wishes to apologize to the Filipino marine guarding the outer reaches of the facility he unintentionally ran against.

Laude family asks Olongapo Prosecutor to subject Pemberton to DNA and fingerprint tests


Centerlaw release
Reference: Professor Harry L. Roque, Jr. 09175398096

Please see attached Omnibus Motion we filed yesterday with the Office of the Prosecutor in Olongapo City, asking that fingerprints and DNA test samples be taken from PFC Pemberton.

Click here for a copy of the Omnibus Motion of Marilou S. Laude vs. Private First Class Joseph Scott Pemberton

In memory of Jennifer: Junk Vfa


I am in Olongapo City standing as lawyer for the Laude family in connection with the gruesome murder of Jennifer.

To set the record straight, I “did not volunteer” my services to the family. A couple of months back, we had a training here in Subic jointly sponsored by the American Bar Association and the defunct AustAid on victim’s rights advocacy. The said training was intended primarily for civil society organizations so that they will know what to do in case there is a case of extralegal killing or torture in their community. That training had members of the Kilusan Demokratikong Pilipino and the women’s group KAISA-KA, the same group also advocating the cause of the last remaining comfort women in Pampanga, in attendance. So when Jennifer’s killing became public in Olongapo, both civil society groups lost no time in assisting the family in taking steps that the proper investigation of the crime take place. Kudos to them, we now have at least three eyewitnesses who can testify that Jennifer was last seen in the company of Pemberton in the crime scene. It was also civil society that alerted police authorities about the occurrence of the crime, which led to the timely investigation by the SOCO of the PNP led by Maj De La Torre.

Yesterday, we filed the criminal compliant that would trigger the process of preliminary investigation to begin. We had doubts about whether the proceedings could move forward given that the Respondent, PFC Joseph Scott Pemberton, is still in the custody of his American superiors. We asked ourselves: where would the Prosecutor serve him with notices for preliminary investigation? We indicated the name of his ship. In reality, no process server from the DOJ could board the vessel since it is an American warship.

So the Laude family is now in a quandary. While their filing of the criminal complaint triggers the legal process, how could it proceed without Philippine custody over the person of the Respondent?

Apparently, the Daniel Smith precedent was different.  There, Smith was immediately made available to Philippine authorities for purposes of attendance in all proceedings as soon as he was identified. But for some reason, this has not happened to Pemberton. His identity was ascertained as of last Monday at the latest, and yet until today, Thursday, US authorities have not made him available for investigation purposes. Could it be that US authorities are contemplating of exercising jurisdiction over him since murder as a hate crime against a transgender relates as well to the discipline of its troops? If this is so, this is worrisome since unlike the case of Smith, American authorities may not have Pemberton available to Philippine authorities altogether.

For the record, we decided to still press charges as of last night since this will at least inform the entire nation that the ball is now in the hands of the Philippine government. The most that the victims can do under the circumstance is to commence with the filing of complaint to trigger the preliminary investigation. Unfortunately, the victims are powerless to compel US authorities to have their soldier available to attend the proceedings. We filed nonetheless at least to illustrate exactly how the VAF offends Philippine sovereignty and jurisdiction. For while Philippine laws were breached and despite the fact that the Victim was a Filipino killed in his own country, our legal system appears to be powerless against the person of a US serviceman.

The consolation is that at least, DFA Secretary Del Rosario, unike the Department’s spokesperson,  has articulated the correct interpretation of the VFA. That is, Philippine authorities should have custody over non-service related crimes committed by US servicemen under extraordinary circumstances. I join Sec Del Rosario that a murder committed as a hate crime against a transgender, suffices to qualify as an “extraordinary” circumstance to warrant Philippine custody over Pemberton.

In any case, the brutal killing of Jennifer, a apparently from drowning in a toilet bowl, should be a wake-up call to all Filipinos that the VFA, and the EDCA will never serve the Filipino interest. Unless we abrogate the VFA and reject the EDCA, more Filipinos will suffer the fate of Jennifer: victimized my bigoted US servicemen and yet denied an adequate domestic remedy.

My promise though is when we fail to get justice for Jennifer and the nation before Philippines courts, we will pursue the killer before foreign courts wherever the bigoted killer may be. Meanwhile, we should unite as a nation and assert our sovereignty: Junk the VFA! Junk the EDCA!

Bail granted to 17 cops in Ampatuan case inconsequential


Centerlaw release
Reference : Professor Harry L. Roque, Jr.

Lawyer Harry Roque downplayed yesterday the decision by the Quezon City regional trial court to grant bail to 17 police officers tagged as perpetrators in the Maguindanao Massacre case.

“The bail granted is not too consequential as far as we are concerned,” said Roque, who represents the families of 15 victims of the massacre, most of whom are journalists from Mindanao. “We’re focused on proving the guilt of the Ampatuans before 2016 and we believe we have strong evidence to prove precisely that.”

The police officers are among 64 Philippine National Police (PNP) officers and men facing administrative cases before the National Police Commission (NAPOLCOM) in connection with the massacre.

The administrative cases were filed by the Center for International Law, a non-profit dedicated to the promotion of free expression in the Philippines and Asia headed by Roque.

Pinay transgender slay proof US military presence never good for us


The alleged killing by a U.S. Marine of a Filipina transgender in Subic Bay is proof that the presence of foreign troops on Philippine soil will never work for the national interest, according to human rights lawyer Harry Roque.

“We should learn from history, foreign military presence and national interest do not mix well,” said Roque.

Roque, Chairperson of Center for International Law, a think-tank dedicated to the promotion of international legal norms in Philippines and Asia, who also teaches constitutional law and international law at the University of the Philippines College of Law, is one of the petitioners challenging the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the United States.

According to Roque, the agreement, which expands the presence of US military forces in various parts of the country, violates the constitutional bar to the establishment of US military bases in the country.

Earlier, Jeffery Laude, also known as “Jennifer,” a 26-year old transgender, was found in the toilet of a room at Celzone Lodge late Saturday in Olongapo City. Police said the victim was apparently strangled to death after checking into a room at the lodge near the former US military base at Subic Bay with a “male, white foreigner”, later on identified as a US marine personnel.

Roque said Laude’s case recalls yet again the iniquitous provisions of the Visiting Forces Agreement on detention facilities for US servicemen found guilty of violating Philippine laws.

EDCA is being pushed by the Philippine government as a necessary supplement to the VFA, to enable the country to better address Chinese incursions in the West Philippine Sea.

Roque had served as counsel in a petition questioning the VFA in the wake of a conviction by the Makati City Regional Trial Court of US serviceman Daniel Smith in 2006 for the rape of a Filipina, Suzette Nicholas, also in Subic Bay. Roque filed the petition after Philippine authorities summarily transferred Smith from the Makati City jail to the US Embassy before he could be formally turned over to the National Penitentiary.

Ruling on the petition, the Supreme Court said the VFA’s constitutionality is not open to question. However, it also said that the Philippines and United states should renegotiate the terms of the VFA in regard to detention facilities under Philippine authorities for US servicemen found guilty of crimes in the country.

In February 2013, in a motion for execution, Roque asked the High Court to compel the Department of Foreign Affairs to renegotiate the relevant provisions of the VFA in accordance with the Supreme Court’s ruling in the Nicholas case.

Early this year, the High Court denied the petition, saying it does not have jurisdiction to hear a motion for execution. On motion for reconsideration, it said US and Philippine authorities have already met to discuss the question of detention facilities, with the Philippines proposing the AFP Custodial Center as an “agreed facility.”

VP Binay’s refusal to attend Senate hearing is not an Impeachable Offense


Ref: Professor H. Harry L. Roque, Jr. 09175398096

In an interview last October 10, 2014, Sen. Miriam Defensor – Santiago said that Vice President Jejomar Binay’s obstinate refusal to appear before the Senate Blue Ribbon Subcommittee constituted betrayal of public trust, an impeachable offense. While we respect the wisdom and experience of the learned Senator, we believe that this statement will just sow confusion and, in turn, affect the public’s perception of the entire impeachment process.

It is our view that the VP’s failure to attend the Senate inquiries is not an impeachable offense.

Article XI, Section 2 of the 1987 Constitution provides that; “The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.” In the words of Justice Estela Perlas – Bernabe, the phrase “betrayal of public trust” refers to acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers.

 

The Constitution is clear. The Senate does not possess the power to compel the Vice-president to attend its inquiries because of the principle of separation of powers between co-equal branches of government. To compel him would be to assert the Senate’s supremacy over the Executive, which is frowned upon by the Constitution. , To claim otherwise would be to go beyond what is spelled out in the Constitution. To claim that it is an impeachable offense is therefore an error.

ISIS and International Humanitarian Law


The terrorist group Islamic State of Iraq and Syria (ISIS) presents complicated issues of classification under International Humanitarian Law (IHL).

IHL is the law specifically applicable in times of armed conflict. It seeks to insulate non-combatants such as civilians from all adverse consequences of armed conflicts. It does this by providing non-combatants protection—that is, they should not be targeted—and by limiting the means and methods of warfare. Specifically, it requires all fighters and combatants to distinguish between valid targets and those with protection, and limits targets as those whose destruction will contribute to the military objective: the complete subjugation of the enemy with minimal collateral damage.

Because IHL is a lex specialis, it cannot apply unless there is in fact an armed conflict, which is sufficiently intense and sustained over a period of time. If there is such a conflict, the type of conflict, be it international or internal, will then determine what the applicable law is. International armed conflicts, or those between states or a state and a group engaged in a war of national liberation, is governed by human rights law, the Geneva and Hague Conventions and by common article three. Internal armed conflicts, on the other hand, are conflicts between a state and an armed group that controls territory, has a military hierarchy, and ha shown itself capable of complying with IHL.

It is the issue of whether ISIS is engaged in an international or internal armed conflict that is controversial. Depending on what type of a conflict it is engaged in, fighters, in turn, would have right of combatants or simply be treated as detainees. This is because the status of a combatant, which among others, leads to the protected status of a prisoner of war, only exists in international armed conflicts. Likewise, immunity arising from one’s participation in an armed conflict exists only in international armed conflicts.

The source of the controversy is because while ISIS is not a state, although its insane members say it is, it nonetheless operates across national boundaries making the armed conflict apparently international. But the requirement of IHL is not that the conflict must cross boundary lines. It is that it be fought by states or by a state and a group engaged in a war of national liberation. ISIS, with its penchant for beheadings of innocent civilians, including journalists, cannot be said to be engaged in a war of national liberation against a colonial or racist regime.

On the other hand, ISIS, while more apt to be engaged in an internal armed conflict since it has territory and apparently a military command, has shown itself incapable of complying with the rules and customs of warfare. Again, its penchant for beheadings is proof of this. Moreover, the armed struggle is directed not just against a state; it is against at least two—Iraq and Syria. Strictly speaking, their barbaric acts appear to be directed against the entire civilized world.

Fortunately or not, the US involvement against ISIS in the form of targeted air strikes has resolved the problem of characterization. Under IHL, the use of air strikes will undoubtedly qualify the application of IHL. Moreover the fact that the US is now using its armed forces against the terrorist group has made the conflict an international armed conflict because regular armed forces of a state is now utilized in a foreign territory.

The issue today has thus gone beyond what conflict the ISIS can pose. Instead, we are now engaged in a debate on whether the air strikes are legal under international law. Ironically, the most unlikely leader has triggered the debate: the Pope himself.

Pope Francis has been vocal against the unilateral use of force even against the ISIS. This is surprising if only because the ISIS has openly declared war against all Christians. He has been arguing that instead of unilateral use of force the UN community, through the Security Council, should authorize the use of force against the terrorist group. I find myself sympathetic to the Pope’s cause. Imperfect as the UN Charter maybe, the type of limited peace that we have achieved since World War II has been anchored on our adherence to the prohibition on the use of force. If we deviate from this established norm, we open ourselves to the possibility of resort to further unilateral force, which will shatter our temporary peace.

In any case, jus in bello is distinct from jus ad bellum. Regardless of the legality of the use of force, IHL, because it is applicable, will apply. This means that individuals behind ISIS, regardless of where they may be found, will be prosecuted for war crimes. Let this be fair warning to the loonies who are toying with the idea of supporting this terrorist group.