IN FRATERNAM MEAM: BACK TO THE COLONIAL PAST

IN FRATERNAM MEAM

Monday, January 09, 2006

BACK TO THE COLONIAL PAST

The alleged rape of a Filipina by American serviceman brings back memories of criminal case past and exposes the defects in the Visiting Forces Agreement.

TWENTY-TWO YEAR OLD SISA N. (not her real name), a business management graduate of Ateneo in Zamboanga City, did'nt commemorate All Saints Day with a visit to her father's grave. On October 30,2005 she took advantage of President Gloria Macapagal-Arroyo's "holiday economics" to see her mother and step sister in Olongapo City. She left her hometown of Zamboanga City, where she helps tend a family owned food stall at the Southern Commnand military headquarters, flew to Manila, and rented a car to drive to the former U.S. Naval facility, Subic Bay.

On the night of November 1, she joined her stepsister, who was with her boyfriend, U.S. serviceman Christopher Mills, at Neptune Disco & Karaoke Club in Subic's Legenda Hotel. Mills introduced Sisa to Daniel Smith and otehr American Marines who were on R&R after participating in a joint RP-US military exercise. She had several drinks, perhaps too many, and danced with Mills and Smith. At 10:30 pm, Smith brought Sisa to their rented van where they were joined by three other Marines.

As the van went around Subic, Smith allegedly raped Sisa while the Americans in the van allegedly egged him on. In her affidavit, she recounted her ordeal: "Pinaghahalikan ako. Hinipuan po ako sa aking maselan na parte ng katawan. Hinubad po ang ajing suot at puwersahang ginahasa. Samatalang akoy's nanglaban at sumigaw. Naririnig ko po ang kanyang mga kasamahan na tuwang tuwa." ( I was molested andkissed in different parts of my body andthen raped. While trying to shout and fight, I heard the others having fun).

The van's driver, Timoteo Soriano, in the first affidavit he submitted to prosecutors, said that on the way back to the ship, while Smith was allegedly raping Sisa, he heard Smith's companions shout, "Go, go, go Smith, go... At matapos na sabihin ang 'Go,go,go Smith go' ay nagtawanan ng malakas at talagang maingay sila? (They said, "Go,go,go Smith", and they laughed and were really noisy.) At around 11:40pm, Soriano was ordered to stop the van. "Binuhat itong si Sisa na parang baboy at ibinaba at iniwan itong si Sisa sa tabi ng daan at nakita ko na ang maong na pantalon ni Sisa ay nakababa haggang tuhod", (Sisa was carried like a pig, and was left on the roadside with pants pulled down to her knees).

A medical examination conducted on Sisa at the James Gordon Memorial Hospital in Olongapo City indicated the woman fought back. She had contusions on both arms and on her right leg. No spermatozoa was found since Smith used a condom, which was recovered by police.

CUSTODY ISSUE
After being informed about the incident, Subic Bay Metropolitan Authority (SBMA) police took custody of the six Americans. But on November 2, a U.S. military commanded demanded custody of the six, citing the provision in the Visiting Forces Agreement (VFA) which states that "custody of any U.S. personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with U.S. military authorities if they so request".

Leftist groups immediately staged protest actions condemning the incident, including the failure of the government to keep custody of the Americans. Joker Arroyo, a nationalist legislator, challenged the U.S. government to show it was as firm against "sexual terrorists" as they are against interntaitonal terrorists. "Ang move, nasa American government. Iyong sinasabi ng mga Amerikano, wala kayong anti-terrorism bill, malambot kayo sa terrorism... o eto ang sagot natin diyan: ano kayo dito? Sexual terrorits, anong ginagawa ninyo?" Arroyo said November 6. (The Americans accuse us of not having an anti-terrorism bill and we might was well answer: Sexual terrorists, what are you doing here?)

Two weeks after the alleged crime, the Arroyo govenrment delivered a letter to the U.S. embassy demanding custody of the six Marines. Foreign Affairs Undersecretary Rafael Seguis said that under the VFA, the Philippines could demand custody in "extraordinary " cases.

But just like the criminal cases involveving American military personnel during the colonial past, and from 1945 to 2001 when the U.S. still had military bases in the Philippines, there's a good chance the Americans will be able to escape Philippine criminal jurisdiction.

VFA REVIEW
Senator Miriam Defensor-Santiago, chairman of the Senate oversight committee on the VFA, said the Subic rape case shows four "extremely defective provisions" in teh VFA, whcih are "biased in favor of the Americans":

First, the provisions that waives passport and visa regulations for U.S. servicemen, which allows them to leave the Philippines without the knowledge and consent of Philippine authorities;

Second, the provision which allows the American government to request the Philippines to waive primary criminal jurisdiction;

Third, the provision which makes it compulsory for Philippine authorities, iof requested by the U.S. to turn over cutody of accused servicemen to U.S. military authorities;

Fourth, theprovisions where the Philippines waives the right to make any claims for loss, damage or destruction to Philippine property.

"On the basis of these four provisions, the Philippines Senate must review, and if possible revise the VFA", Santiago says, Because it has these four provisions that have implications derogatory of Philippine jurisdiction, which are not found in any of the Status of Forces Agreements (SOFA) of the U.S. with the developed states of the Norh American Treaty Organization (NATO).

Santiago, an international law expert, says the case has the potential damage bilateral ties between the U.S. and the Philippines, She says it is similar to the rape by three U.S. servicement of a 12 year old girl in Okinawa, Japan in September 1995.

"The U.S. should already be familiar with the community response. It has been very, very severe in Okinawa and in other Asian countries, and included the Philippe reactions as well". she says. "So before the matter gets out of hand, if the U.S. wishes to retain our level of cordiality, it must pay heed to the climate of public opinion within our country."

She criticized the Department of Foreign Affairs (DFA) for giving up custody over the Americans even without a witten notice form the U.S. side. "I get the impression that the DFA was stepping gingerly. I'm very sad that we take this attitude," she says.

"It makes us sound like we are still a mini-colony of the U.S. We're afraid to stand up for our rights. We're always worried that we might incur their displeasure."

Although the Philippine government requested it, Senator Santiago does not foresee the U.S. giving up custody. "That would present a physical problem on the ground. How are we going to wrest physical custody if they (U.S.) refuse? It will become a stand off". she says. The U.S., she noted, has given up custody of accused military servicemen in only a handful of instances.

Constitutional expert Fr. Joaquin says the provision in the VFA, which allows the Philippines to demand custody in extraordinary cases merely requires that the U.S. government take the request into account. "Ours is a beggar's choice", he says.

ANTI-VFA PROTESTS
The rape case has given leftist groups in the Philipines a rallying symbol for anti U.S. and anti VFA protests. Since the case was reported, pickets havebeen held almost weekly at the U.S. embassy inManila. Rallies have also been held outside the Hall of Justice in Olongapo City during the preliminary investigation bearings.

"All Filipinios should stand in solidarity with the rape victim. We want justice to prevail. U.S. troops must be made accountable under Philippine laws," says Bagong Alyansang Makabayan secretary general Renato Reyes. "Whatever happens to the rape case. the VFA is already in question. Junking the VFA will be necessary if the U.S. refuses to turn over the suspecs to the Philipines."

The protests, however, have not reached the scale in Okinawa, where hundred of thousands joined street marches demanding justice. The widespread civil unrest eventually forced the U.S. to give up criminal jurisdiction over the three servicement. They were found guilty and sentences to seven years in a Japanese prison.

Dr. Walden Bello, a well known critic of U.S. foreign policy, said the Arroyao administration's failure to assert custody over the U.S. servicement shows it "has been more protective of the Americans that of the Filipina." Thus, he does not see the case becoming a major strain at the official level. He said the main impact of the incident is "going to be the further education of the people" about its relations with the U.S. plus "simmering popular discontent with the VFA".

Prospects for the Case
At the second preliminary investigation hearing last November 29 conducted by Olongapo City prosecutors, five of the six accused servicement, denied having gang raped Sisa. The main suspect, Smith, waived his right to file a counter affidavit.

Prosecutors are expected to file a case of rape against Smith. The trial woild have to be concluded within a year. A provision in the VFA states that "in the even Philipine judicial proceedings are not completed within one year, the U.s. shall be relived of any obligatiosn under this paragraph".

Sisa's lead counsel, Katrina Legarda, assailed those who negotiated and ratirifed the VFA for approving this provision in the agreement. "That is something which for me is atrocious, which means that they never practiced law when they did this VFA with the U.S. government". she says. "How can we finish this in one year? Yung preliminary investigation lang, the prosecution panel is allowed 60 days. That's too much. E, alam mo naman dito sa Pilipinas, and Christmas time, nothing ever happens."(Nothing usually happens during Christmas time in the Philippines)

The victims' mother, Susan, has appealed for public support in the quest for justice for her daughter. "We must show our unity because I don't want this to happen to other Filipino women, that they be treated like animals by foreigners. This is not just for our family, this is for all of us," she says.

(Source: FILIPINAS by: Isagani de Castro Jr.)

posted by infraternam meam @ 9:47 AM

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