PH-Japan RAA: Receiving state to have jurisdiction if member of visiting force commits a crime

The Marcos administration has vowed that the country's Reciprocal Access Agreement (RAA) with Japan will not be similar to the Visiting Forces Agreement (VFA) with the United States in terms of the custody of erring servicemen on Philippine soil.

Since the VFA was inked between Manila and Wahington in 1999, at least two American troops faced criminal charges including Daniel Smith who was convicted of raping a Filipina and was later cleared of the charges, and Scott Pemberton who was convicted of killing a transgender Filipino woman in 2014.

Under the newly-signed RAA, the members of the Visiting Force and the Civilian Component shall remain at all times under the national command and overall control of the Sending State in accordance with its laws and regulations.

The RAA defines Visiting Force as the Force of a Party, which, with the consent of the other Party, is present in the territory of that other Party in connection with cooperative activities. 

On the other hand, the Civilian Component means the civilian nationals of the Sending State accompanying the Visiting Force. They are employed by or in the service of the Visiting Force and who are neither ordinarily resident in the Receiving State nor contractors engaged by, or on behalf of, the Visiting Force. 

Receiving State, meanwhile, means the Party in whose territory the Visiting Force or the Civilian Component is present or as the context requires, the territory of that Party.

Disciplinary Jurisdiction

Under Article XXI or the portion stating Command and Control and Criminal and Disciplinary Jurisdiction, authorities of the Receiving State shall have criminal jurisdiction over the members of the Visiting Force and the Civilian Component with respect to offenses committed within the Receiving State.

Their offenses will be punishable by the law of the Receiving State, according to the RAA. 

Meanwhile, the authorities of the Sending State shall have the right to exercise exclusive jurisdiction over the members of the Visiting Force and the Civilian Component with respect to offenses, including offenses relating to the security of the Sending State, punishable by the law of the Sending State but not by the law of the Receiving State.

Further, the authorities of the Receiving State shall have the power to exercise exclusive jurisdiction over the members of the Visiting Force and the Civilian Component with respect to offenses.

These include offenses relating to the security of the Receiving State, punishable by the law of the Receiving State but not by the law of the Sending State.

Security Offense

The RAA also states that a security offense against a Party shall include treason against that Party; and sabotage, espionage or violation of any law relating to official secrets of that Party, or secrets relating to the national defense of that Party.

In cases where the right to exercise jurisdiction is concurrent the authorities of the Sending State shall have the primary right to exercise jurisdiction over the members of the Visiting Force and the Civilian Component in relation to:

• Offenses solely against the property or security of the Sending State, or offenses solely against the person or property of another member of the Visiting Force or the Civilian Component; or
• Offenses arising out of any act or omission done in the performance of official duties.

The two countries agreed that in the case of any other offense, the authorities of the Receiving State shall have the primary right to exercise jurisdiction. 

However, if the Party having the primary right to exercise jurisdiction decides not to exercise jurisdiction, it shall notify the authorities of the other Party as soon as practicable.

Speedy Trial

Under the deal, whenever a member of the Visiting Force or the Civilian Component is prosecuted under the jurisdiction of the Receiving State, the person shall be entitled:

• To a prompt and speedy trial;
• To be informed in advance of the trial of the specific charge or charges made against the person in order to have reasonable time to prepare a defense;
• To be confronted with the witnesses against the person;
• To present evidence in his or her own defense and to have a compulsory process for obtaining witnesses if the witnesses are within the jurisdiction of the Receiving State;
• To have legal representation of his or her own choice for his or her defense or to have free or assisted legal representation under the conditions prevailing in the Receiving State;
• To communicate with a representative of the Sending State and, when the rules of the court permit, to have such a representative present at his or her trial;
• To be present at his or her trial, which shall be public. However, without prejudice to the minimum standards listed in this paragraph, any other person may be excluded if the court so decides for reasons of public order, security or morality;
• To bail, subject to the laws and regulations of the Receiving State;
• Not to be compelled to testify against himself or herself; and
• Not to be held guilty of a criminal offense on account of any act or omission which did not constitute a criminal offense under the law of the Receiving State at the time it was committed.

The RAA was signed on Monday as the Philippines and Japan recognize their shared interests in regional and global peace and stability and international order based on the rule of law.

The two nations emphasized their mutual commitment to the peaceful settlement of international disputes and to the maintenance of international peace and security.

The newly-signed agreement still needs the ratification of the Philippine Senate and the National Legislature of Japan before it takes effect.  

—VAL, GMA Integrated News