The Supreme Court has been asked to order the transfer of US Marine Private First Class Joseph Scott Pemberton from Camp Aguinaldo to a regular civilian detention facility while he is being tried for the murder of transgender Jeffrey “Jennifer” Laude.
In their 32-page petition, Laude’s sisters—Marilou and Mesehilda— appealed to the SC to reverse two orders earlier issued by Olongapo City Regional Trial Court Branch 74 Judge Roline Jinez-Jabalde denying their requests to have Pemberton jailed in a regular civilian facility.
The petitioners claimed that Jabalde committed grave abuse of discretion when the judge dismissed their motion.
In her order dated December 23, 2014, Jabalde junked the request of the Laude family for violating the three-day notice rule of the Rules of Court requiring the conformity of the public prosecutor in any pleading filed by a private complainant with the court in the criminal proceeding.
The second petition was filed by the family last January 9, but it was again cast aside by the court in February 18.
However, the Laude sisters asserted that the judge committed grave abuse of discretion when she used the three-day notice rule as the reason for junking their petition adding that the rule is not absolute.
“The three-day notice rule is not absolute. Its rationale is satisfied when there is an opportunity to be heard which was clearly present in the hearing for these two motions,” the petition said.
“A liberal construction of the procedural rules is proper where the lapse in the literal observance of a rule of procedure has not prejudiced the adverse party and has not deprived the court of its authority,” the petitioners added.
Even the SC has ruled in previous cases that the purpose for the 3-day notice rule is fulfilled when there is an opportunity to be heard, the petitioners said.
They said the conformity of the public prosecutor—Olongapo City Prosecutor Emelie Fe delos Santos- to the urgent motion calling for the transfer of Laude to the Olongapo City Jail is a “mere superfluity” considering that she refused to sign it.
The petitioners also faulted the judge for raising “mere technicalities” in her ruling junking their motion considering that the issues they raised are of “transcendental importance and of primordial public interest.”
“That urgent motion asserts Petitioner’s right to access to justice recognized both under international law and the 1987 Constitution,” they said.
Aside from committing grave abuse of discretion, the petitioners said even the Visiting Forces Agreement clearly provides for Philippine custody of US military personnel charged with committing cases such as murder while the case is being heard by the court.
“The refusal of Philippine authorities, including the Respondent Judge to place Respondent Pemberton in the custody of Philippine jail authorities on the basis of the VFA is unconstitutional, on the grounds that it undermines the constitutional powers of courts to hear a jurisdictional matter brought before it and more importantly, it undermines the court’s powers to promulgate rules for the practice of law,” they stressed.
“Consequently, as Respondent Pemberton is charged with murder-a non-bailable crime-it is essential that the Respondent Judge order the transfer of custody of the accused to the Olongapo City Jail, as custody is a means by which the trial court exercises its jurisdiction over accused,” the petitioners said.
They also cited the opinion of the late former Justice Secretary Serafin Cuevas wherein the latter said 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.”