CONFLICTS OF LAW

CONCHA, RAINIER RHETT G.

A Reaction Paper on the Laude Subic Bay Murder

Crimes by members of visiting troops on the country are not unheard of and
had proven to be a thorny issue among negotiators of the Mutual Defense Treaty
(MDT) in its inception in 1951. There was a tug of war on custody and jurisdiction
with the clauses in the bases agreement inequitably vague. Subsequent agreements
have been rectified to restore the States sovereignty and made clear the States
jurisdiction and its bounds. The recent case of certain transgender named Jennifer
Laude found dead a lodging house in Subic Bay, allegedly murdered by a US Marine
named PFC Joseph Scott Pemberton, is not unprecedented. Naturally, the news
immediately spread like wild fire and a public outcry for the victims justice was
aroused.
The issue of jurisdiction was again to arise and this once again put to test the
integrity of the new force agreement. Who must have jurisdiction and custody of
Pemberton? Should he be prosecuted under Philippine law or under the US law by
its Court Marshall?
History has taught us many lessons. In the Mooney case where an American
soldier shot a native, mistaking him for a deer, the State lost jurisdiction since the
offense happened within the perimeter of a US base. The state could not possibly
allow such transgressions untried and thus sought to rectify this aspect of the
agreement in the negotiations for the MDTs renewal. Terms in the latter have
become less vague though still leaving much to be desired.
In order to answer the issue of jurisdiction, we must first take into
consideration the General Rule of International Law when it comes to acts of foreign
troops in a foreign jurisdiction. Second, we must consider treaties or agreements
between countries in agreement.
The General Rule in International Law regarding acts of foreign troops in a
foreign jurisdiction is that they are absolutely immune from domestic jurisdiction. In
other words, normally Pemberton would be exempt from domestic jurisdiction of
the Philippines. This general rule was affirmed by the International Court of Justice
in the recent case of Germany v. Italy.
Now, we come to the treaties between US and the Philippines. There are
actually already three treaties with regards to military cooperation between the two
states, first, the 1951 Mutual Defense Treaty (MDT), second, the 1999 Visiting Forces
Agreement (VFA), and finally and the most recent, the Enhanced Defense
Cooperation Agreement (EDCA) signed on April 28, 2014.
Under the VFA, the US government agreed that ordinary crimes committed
by its troops will be subject to the primary jurisdiction of the Philippines and can be
considered an exception to the general rule of absolute immunity of foreign troops in
a foreign jurisdiction.
However, the VFA did not have the concurrence ofthe US Senate. Sans the
concurrence the US government there is no a waiver of immunity and the treaty,
therefore, has no force and effect of law in the US.
It is my opinion that the exception as provided by the VFA should be applied.
Since Pemberton committed an ordinary crime in Philippine territory, lex loci delictus
must hold. The Philippines must have primary jurisdiction.

CONFLICTS OF LAW

CONCHA, RAINIER RHETT G.

If Pemberton were to be detained in a US vessel, the Philippines practically

loses jurisdiction, these vessels being US territory. As a consequence, the normal
procedural course of investigation would be impeded and crucial physical and
forensic evidence might be lost in time. Therefore the US cannot retain custody of the
suspect as he must be prosecuted and made accountable under Philippine law.
The case took a dramatic turn when, on October 22, 2014, Mark Sueselbeck, a
German national who to was the victims romantic partner, along with the victims
sister Marilou, climbed a perimeter fence inside Camp Aguinaldo to get inside the
Mutual Defense Board-Security Engagement Board facility, a restricted area, where
US Marines Pfc. Joseph Scott Pemberton is being held.
Everyone on national television saw the event as it reach its worst pinnacle,
when Sueselbeckwas able to reach the other side and tried to assault a Filipino
soldier. Using his height and weight advantage he had no trouble ploughing himself
through the restricted zone. He was, however, unable to reach the facility where
Pemberton was being detained. After Sueselbeck was captured, he made an apology
to the AFP. Though the Armed Forces of the Philippines has accepted his apology,
itremains committed to pursue the move to have him declared as undesirable alien.
Sueselbeck and Marilou, during a media interview justified their actions.
They acted in desperation and were on the verge of losing hope and really wanted to
confirm that Pemberton was actually detained in the facility.
In the case of Secretary of Justice v. Christopher Koruga, the Supreme Court
made clear its disposition towards visiting aliens:
entry or stay of aliens in the Philippines is merely a
privilege and a matter of grace; such privilege is not
absolute or permanent and may be revoked.
When an alien, such as respondent, has already physically
gained entry in the country, but such entry is later found
unlawful or devoid of legal basis, the alien can be excluded
anytime after it is found that he was not lawfully
admissible at the time of his entry. Every sovereign power
has the inherent power to exclude aliens from its territory
upon such grounds as it may deem proper for its selfpreservation or public interest. The power to deport aliens
is an act of State, an act done by or under the authority of
the sovereign power. It is a police measure against
undesirable aliens whose continued presence in the
country is found to be injurious to the public good and the
domestic tranquility of the people.

Also in the case of Go Tek v. Deportation Board, the Supreme Court affirmedthe
States inherent power to deport undesirable aliens and under existing law; the
deportation of an undesirable alien may be effected (1) by order of the President,
after due investigation, pursuant to section 69 of the Revised Administrative Code
and (2) by the Commissioner of Immigration upon recommendation of the Board of
Commissioners.
The Philippines, as a sovereign state, may exercise its inherent police power to
exclude Suselb from our territory upon such grounds as it may deem proper for its
self-preservation or public interest. It must be observed that Sueselbeck is an
ordinary visiting alien and is subject to the rules and regulations of the Philippines.
His act of knowingly trespassing and assaulting army personnel is a clear violation

CONFLICTS OF LAW

CONCHA, RAINIER RHETT G.

of the laws. His stay here was only a privilege and a matter of grace, which he
knowingly abused.
If Sueselbeck was not to be charged and declared as an undesirable alien, he
may leave the country at any time, without facing the consequence of his actions and
may come back at any time without any complication. Whereas, if he were charged,
the Bureau of Immigration may stop him from leaving the country and, with the
proper administrative proceedings, he may be declared as an undesirable alien
resulting in his immediate deportation. Deportation due to declaration of person as
an undesirable alien implies an individuals tarnished record which the Statemust be
wary of. Nevertheless, entry into the country being a matter of grace and not a right,
the alien may be refused entry at the states prerogative.