CONVICTED MARINE IS TOTALLY INNOCENT - FR. REUTER
MANILA, (STAR) By Patricia Esteves And Michael Punongbayan - Fr. James Reuter, the spiritual adviser of Lance Corporal Daniel Smith, yesterday said he believes that Smith is innocent of the crime of rape.
Smith is the United States Marine who was recently found guilty of raping a Filipino woman inside a van in Subic last year. The 21-year-old sailor was sentenced to a life in prison for "bestial acts."
Smith’s three co-accused — US Marine Lance Corporals Keith Silkwood, Dominic Duplantis, and Staff Sergeant Chad Carpentier — were acquitted after a seven-month trial.
"I thought the verdict was not just but I wouldn’t say (Makati City Regional Trial Court) Judge (Benjamin) Pozon was wrong. He gave an actual reflection of the truth but Daniel Smith is not guilty of rape. The decision was honest in the sense that Judge Pozon declared what he saw and heard but it does not reflect the reality that Smith is not guilty," Fr. Reuter said.
"Pozon heard the prosecutors, the witnesses, etc., but he did not believe and accept Danny’s own word. For me, Smith is totally innocent of the crime of rape, that is my personal belief," Reuter said.
Reuter said the verdict was not fair but at the same time, he doesn’t want to say Judge Pozon was wrong in his decision.
Reuter admitted he had become depressed and distressed after Smith’s guilty verdict was handed down.
Smith has conveyed through Reuter that "he has no desire to hate anybody and is trying to accept his fate as peacefully as he can."
Fr. Reuter, who fondly calls Smith "Danny," visited and talked with Smith in his cell at the Makati City Jail yesterday morning.
"Danny said he does not want to be resentful and he has no desire to hate anybody. He is trying to take it as peacefully as he can," the 90-year-old Jesuit priest told The STAR.
Reuter promised Smith that he would continue to visit even if Smith is transferred to Muntinlupa City’s New Bilibid Prison.
During his visit, Reuter cheered Smith up and told him "to keep his chin up and pray for the best because his fight is not over. I told him he has two more rounds, the Court of Appeals and the Supreme Court so there is still hope."
He also told Smith that there might be a reason or a purpose why God allowed such things to happen to him: "I told Smith that God will never let anything happen to you unless he can draw something good in it and I said: ‘Danny, you may be in agony now, but I know God will draw something good from this, so be patient.’ Danny believed that."
Reuter said that he doesn’t want to be preachy with Smith because Smith is not a Catholic, though Reuter added that what he tells Smith has universal themes and can apply to Protestants, Muslims or other religions. Reuter also said he’s not sure about what religion Smith follows.
He praised Smith, whom he described as "mature beyond his age. The good thing about Smith is he is taking all this well. He’s mature, brilliant and balanced for a 21-year-old guy."
Reuter also said Smith’s family in St. Louis, Missouri is planning to visit him after the Christmas holidays: "Danny spoke to his family and they are hoping to come to the Philippines to see him but probably after the holidays because the price of air fare is still too expensive for them. They’ll visit him after fare prices have gone down."
Reuter said he believes the four US Marines and has believed them since the day he became their spiritual adviser after Chris Rowan, the officer in charge of the distressed Americans, called him up and asked him to give spiritual classes to the four US servicemen.
"I began to teach them beautiful things," Reuter said. "In fact, I learned tremendous things from them. I’ve held classes with them once a week and that is why I believe them because I always talked to them and I know they were telling the truth, I could tell."
"From the very start, I believed in the honesty of Smith, down to the last syllable that he said. I know that he is telling the truth," Reuter said.
Reuter has lived in the Philippines for 63 years. He taught at the Ateneo de Manila University and St. Paul’s College, as well as other Catholic schools.
Based on evidence
Meanwhile, Pozon said he convicted Smith based on "sufficient evidence."
In an interview with Ces Drilon of ABS-CBN, Pozon said his decision was "not Solomonic," nor was it a result of a compromise because evidence presented during the marathon trial called for the conviction of Smith and the acquittal of Smith’s co-accused.
"If there is really sufficient evidence against all the accused, I would really convict them. If there is really no evidence against any of them, I will acquit them," Pozon said.
Responding to Smith’s claims that the verdict was meant to sacrifice his blood to pacify the public, Pozon said he was sorry Smith believes this, "but that is not my reason."
He also said the Subic rape case does not end with his decision, since there will be an appeal, there will be the question of detention and there may also be other questions later on.
"My only purpose is to render justice based on evidence, nothing more, nothing less," Pozon said while admitting to reports that he had cried as he wrote his 63-page ruling.
"Yes, because I am also a parent, a father," Pozon said. "I have young kids so talagang tinamaan din ako (that’s why I was affected very deeply). They are both young, the complainant is very young, the accused are very young, especially Smith. But then I have to decide based on the evidence even though na talagang masakit sa dibdib ko, (it truly pained my heart). I had to do it."
Pozon, whose eldest son is a year younger than Smith and is studying at the Mapua Institute of Technology and whose daughter is studying at the University of Sto. Tomas, said it was tough writing his decision on the Subic rape case.
The contents of Pozon’s decision were not revealed, even to his clerk of court until the clerk read the verdict in open court on Dec. 4.
Pozon said no one tried to influence how he would decide the case. He also said he did not let media reports or advocacy groups affect him either.
"I’m happy although the media followed this case closely, at least no one directly talked to me on how to decide on the case," said Pozon.
He told ABS-CBN that it took a month, more or less, to write the decision, which he kept reading until the day of the promulgation of judgment.
He said there were sleepless nights and that he had to neglect a lot of other obligations to his family and to his students at the University of the East, where he teaches law.
Pozon, not wanting credit for having made history, said he only did his job. He added that a higher court agreeing with his decision would be a big reward.
He said the higher courts rarely doubt the assessment of the lower courts insofar as the credibility of the witnesses is concerned, though there are technical issues that may be raised.
"If I will be affirmed by the High Court, it will be a great reward," Pozon said. "Of course, the most important thing is I know that I have done my job. I have rendered justice and I believe that it was the correct decision."
Pozon’s order for Smith’s detention in the Makati City Jail triggered attacks upon his person, but despite the conflicting interpretations of the Visiting Forces Agreement (VFA), Pozon said he made the right decision.
"During the arraignment, if you remember, the prosecution asked the court to take custody of the accused but I denied that because I know we have this VFA," Pozon said. "I know that the government of our country tried its best to take custody of the accused, but then the United States government invoked the right under that agreement to have immediate custody of the accused."
"That was during the proceedings. Now that the case had been decided, the court believes that the judicial proceedings are now over so the court can no longer apply that particular provision — Article 5, Paragraph 6 (of the VFA)," he added.
"Since the proceedings are now over, there is that decision already, the court believes that the applicable provision is also Article 5 — but this time Paragraph 10, because Article 6 provides this is only during trial, but Paragraph 10 says after trial," Pozon said, referring to provisions of the VFA stating who gets custody of an American soldier while on trial and after conviction.
He also said the appeal of a judgment is not included in the one-year period within which a US serviceman can be tried in a Philippine court, as stated in the VFA.
Pozon said his decision or interpretation of the VFA does not mean that a motion for reconsideration of the commitment order will be junked outright.
"What the court said in its decision is, until such time that our government and the government of the US have agreed on the facilities where Smith should serve his sentence pending his appeal," Pozon said. "If there is that agreement signed by the authorities of both countries submitted to the court and asks the court to take note of that, to consider, then the court will have to abide by that."
Minimum rules met
Invoking the United Nations (UN) Standard Minimum Rules for the Treatment of Prisoners, the Makati City Jail (MCJ) yesterday defended the manner by which Smith is treated in the facility.
Adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders in Geneva in 1955 and approved by the UN Economic and Social Council through two separate resolutions in 1957 and 1977, the rules justify why Smith is accorded "privileges" that other people have referred to as "special treatment."
MCJ warden Superintendent Delvic Oreiro said that at least nine provisions or sections of the UN’s rules on how prisoners should treated directly apply to Smith’s case.
Sections seven and eight, he said, speak of how no person shall be received in an institution without a valid commitment order, how different categories of prisoners shall be kept in separate institutions or in separate parts of an institution — taking into account their gender, age, criminal record, the legal reason for their detention, as well as the necessities of their treatment, and how untried prisoners shall be kept separate from convicted prisoners.
Oreiro said Smith is a temporary prisoner of the MCJ who will be detained there until the US and Philippine governments decide on where he should be housed while his case is on appeal.
He said sections nine and 10 provide that "if, for special reasons such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to the rule" that there should only be one prisoner per cell and that "all accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation."
Oreiro said these provisions explain why Smith is being held at the records section of the MCJ, since it would be unsafe to mix him with other inmates because he is a temporary prisoner and is "an isolated case."
In addition to that, he said sections 19 and 20 of the UN rules speak of how "every prisoner shall, in accordance with local or national standards, be provided with a separate bed and with separate and sufficient bedding, which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness."
The UN rules also state that "every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served" and that "drinking water shall be available to every prisoner whenever he needs it."
These provisions, Oreiro said, explain why they are allowing US embassy representatives to bring Smith food and drink, considering that he has not eaten any of the MCJ food since he was detained.
He also said section 37, 38, 39, and 45 specifically apply to Smith’s case as a foreign national or a US soldier who is covered by privileges under the Visiting Forces Agreement (VFA).
"Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits," section 37 says.
"Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong. Prisoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons, Section 38 reads.
Section 39 provides that "prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorized or controlled by the administration."
Section 40 of the UN rules require that "every institution shall have a library for the use of all categories of prisoners, adequately stocked with both recreational and instructional books and prisoners shall be encouraged to make full use of it."
Oreiro reiterated that Smith is not being given special treatment at the MCJ where he spent his fourth night yesterday since his conviction last December 4.
Pozon has yet to rule on an urgent motion filed by the US Marines’ lawyers requesting that Smith be transferred to the US embassy in the City of Manila.
Evalyn Urusa, the private prosecutor in the case, and former Sen. Rene Saguisag filed their opposition to the motion, believing that the court should not allow US authorities to take custody of Smith because he has already been convicted of a crime and sentenced to 40 years imprisonment.
Oreiro said Smith’s room is still not equipped with a bed or anything one may use as a bed nor does he enjoy air-conditioning. "If they will provide such thing, then that may be okay," he said, adding that the MCJ cannot provide such things, which is why Smith is being allowed to use a long table as a bed.
Chronic budgetary constraints suffered by the Bureau of Jail Management and Penology (BJMP) have forced the bureau to limit their meal allocations per inmate to only P40 a day.
Hoping that Smith will soon be ordered removed from the facility, MCJ officials are already preparing for his exit and await a court order to this effect.
Makati court ignores RP-US note on Smith By Michael Punongbayan The Philippine Star 12/09/2006
The Makati City Regional Trial Court (RTC) refused yesterday to issue a ruling on whether or not convicted rapist Lance Corporal Daniel Smith of the United States Marines should be returned to US custody based on an agreement signed by US Ambassador Kristie Kenney and Chief State Prosecutor Jovencito Zuño.
RTC Judge Benjamin Pozon instead scheduled for Monday a hearing on a motion for reconsideration of his Dec. 4 order to detain the 21-year-old Smith at the Makati City Jail (MCJ).
"It doesn’t seem appropriate that (Zuño is the signatory)," Pozon said when asked why he did not honor the agreement between US and Philippine authorities to detain Smith at the US Embassy while his case is on appeal.
A new agreement signed by Kenney and Justice Secretary Raul Gonzalez was later sent to Pozon’s office. But the judge also ignored it.
Smith, who was found guilty of raping a 23-year-old Filipina identified only as "Nicole," will have to stay at the MCJ for at least two more days.
Nicole’s lawyers have formally objected to Smith’s transfer to US custody and have threatened street protests to oppose it.
Smith is being held at the MCJ records room, which was converted into a temporary holding room.
Smith’s lawyers, Nicole’s private counsel Evalyn Ursua and former senator and human rights lawyer Rene Saguisag were ordered to attend the hearing on Monday.
Pozon also sent notices to the Department of Foreign Affairs (DFA), Department of Justice (DOJ) and the Visiting Forces Agreement (VFA) Commission.
Joan de Venecia, one of Smith’s lawyers, said the court did not act on their manifestation citing an agreement between the US and the Philippines as to where their client will be detained or who takes custody of him.
"The government of the Republic of the Philippines and the government of the United States of America agree that, in accordance with the VFA signed between our two nations, Lance Corporal Daniel Smith, US Marine Corps, be returned to US military custody at the US Embassy in Manila," the agreement read.
De Venecia said Judge Pozon’s refusal to act on their manifestation, citing the documents signed by Kenney and Zuño, means he does not honor the agreements or wants these agreements discussed further.
"I feel that, right now, because there’s already an agreement and this agreement is between the governments of the Philippines and the US, we might already be in breach of our international obligations or international law," she said.
De Venecia said they believe that orders affecting their client’s detention must come from Pozon, adding that they respect the Makati City court’s authority and jurisdiction.
However, she said other avenues or means by which Smith can be removed from the MCJ are being explored. She refused to elaborate.
Meanwhile, the Department of Justice asked Pozon to respect the VFA, which the DOJ said allows the US Embassy to place Smith under its custody until his life sentence becomes final.
Two US Embassy officials led by US legal attaché Jeff Cole visited the office of Zuño to obtain a copy of the motion signed by Gonzalez signifying that the DOJ had "no objection" to the request for immediate turnover of Smith to the US Embassy.
Zuño said the Philippine government, being a signatory to the VFA with the US government, will have to respect this agreement.
"It is now addressed to the court. It is up to the court to decide. If it rules against it, the US Embassy can go to the Court of Appeals or the Supreme Court," Zuño said. "This is a high-level matter and it will be between the DFA and the US Embassy now."
Zuño said Cole represented the Philippine government in the US in the extradition case of businessman Charlie "Atong" Ang.
"(Cole) was the one who argued, representing the Philippine government. The DFA can enter into the picture (to insist on Smith’s turnover to the US Embassy) because we are now talking about the VFA," Zuño said.
Gonzalez said he had signed another joint motion to allow Smith’s transfer to the US Embassy: "Let us find out first what will be the court’s action on this," he said.
The joint motion signed by Gonzalez supports earlier calls by the US Embassy for the Makati City RTC to permit the diplomatic post to take custody of Smith.
"(The US Embassy) claimed that they should have custody of Smith because (the) appeal is still part of the judicial proceedings and they filed a motion for immediate turnover of Smith to the US Embassy. After coordinating with the DFA, we agreed to have one position — and that is to respect the terms and conditions of the VFA," Zuño said.
Zuño said the Philippine government will have to respect the VFA: "Smith is not an ordinary citizen. He is a member of the US army participating in a military exercise. Therefore, he is covered by the VFA."
Citing Article V, Paragraph 6 of the VFA, the DFA said earlier that the US is entitled to have custody of Smith until his conviction becomes final.
In a note verbale, the US Embassy said it "reaffirms the right of the US military authorities to exercise custody of any US personnel over whom the Philippines is to exercise jurisdiction until completion of all judicial proceedings."
Zuño said the Philippines must abide by the VFA because it is a signatory to the agreement.
He said the Philippine government will ensure that Smith will not be given preferential treatment while in detention at the US Embassy: "He will be treated as a detainee."
Gonzalez earlier admitted that the Philippine government will have difficulty getting custody of Smith because of the VFA.
Smith was sentenced to life imprisonment last Monday for the rape of "Nicole" at the Subic Bay Freeport on Nov. 1 last year. — With Jose Rodel Clapano, Sheila Mae Milan, AP
Smith is the United States Marine who was recently found guilty of raping a Filipino woman inside a van in Subic last year. The 21-year-old sailor was sentenced to a life in prison for "bestial acts."
Smith’s three co-accused — US Marine Lance Corporals Keith Silkwood, Dominic Duplantis, and Staff Sergeant Chad Carpentier — were acquitted after a seven-month trial.
"I thought the verdict was not just but I wouldn’t say (Makati City Regional Trial Court) Judge (Benjamin) Pozon was wrong. He gave an actual reflection of the truth but Daniel Smith is not guilty of rape. The decision was honest in the sense that Judge Pozon declared what he saw and heard but it does not reflect the reality that Smith is not guilty," Fr. Reuter said.
"Pozon heard the prosecutors, the witnesses, etc., but he did not believe and accept Danny’s own word. For me, Smith is totally innocent of the crime of rape, that is my personal belief," Reuter said.
Reuter said the verdict was not fair but at the same time, he doesn’t want to say Judge Pozon was wrong in his decision.
Reuter admitted he had become depressed and distressed after Smith’s guilty verdict was handed down.
Smith has conveyed through Reuter that "he has no desire to hate anybody and is trying to accept his fate as peacefully as he can."
Fr. Reuter, who fondly calls Smith "Danny," visited and talked with Smith in his cell at the Makati City Jail yesterday morning.
"Danny said he does not want to be resentful and he has no desire to hate anybody. He is trying to take it as peacefully as he can," the 90-year-old Jesuit priest told The STAR.
Reuter promised Smith that he would continue to visit even if Smith is transferred to Muntinlupa City’s New Bilibid Prison.
During his visit, Reuter cheered Smith up and told him "to keep his chin up and pray for the best because his fight is not over. I told him he has two more rounds, the Court of Appeals and the Supreme Court so there is still hope."
He also told Smith that there might be a reason or a purpose why God allowed such things to happen to him: "I told Smith that God will never let anything happen to you unless he can draw something good in it and I said: ‘Danny, you may be in agony now, but I know God will draw something good from this, so be patient.’ Danny believed that."
Reuter said that he doesn’t want to be preachy with Smith because Smith is not a Catholic, though Reuter added that what he tells Smith has universal themes and can apply to Protestants, Muslims or other religions. Reuter also said he’s not sure about what religion Smith follows.
He praised Smith, whom he described as "mature beyond his age. The good thing about Smith is he is taking all this well. He’s mature, brilliant and balanced for a 21-year-old guy."
Reuter also said Smith’s family in St. Louis, Missouri is planning to visit him after the Christmas holidays: "Danny spoke to his family and they are hoping to come to the Philippines to see him but probably after the holidays because the price of air fare is still too expensive for them. They’ll visit him after fare prices have gone down."
Reuter said he believes the four US Marines and has believed them since the day he became their spiritual adviser after Chris Rowan, the officer in charge of the distressed Americans, called him up and asked him to give spiritual classes to the four US servicemen.
"I began to teach them beautiful things," Reuter said. "In fact, I learned tremendous things from them. I’ve held classes with them once a week and that is why I believe them because I always talked to them and I know they were telling the truth, I could tell."
"From the very start, I believed in the honesty of Smith, down to the last syllable that he said. I know that he is telling the truth," Reuter said.
Reuter has lived in the Philippines for 63 years. He taught at the Ateneo de Manila University and St. Paul’s College, as well as other Catholic schools.
Based on evidence
Meanwhile, Pozon said he convicted Smith based on "sufficient evidence."
In an interview with Ces Drilon of ABS-CBN, Pozon said his decision was "not Solomonic," nor was it a result of a compromise because evidence presented during the marathon trial called for the conviction of Smith and the acquittal of Smith’s co-accused.
"If there is really sufficient evidence against all the accused, I would really convict them. If there is really no evidence against any of them, I will acquit them," Pozon said.
Responding to Smith’s claims that the verdict was meant to sacrifice his blood to pacify the public, Pozon said he was sorry Smith believes this, "but that is not my reason."
He also said the Subic rape case does not end with his decision, since there will be an appeal, there will be the question of detention and there may also be other questions later on.
"My only purpose is to render justice based on evidence, nothing more, nothing less," Pozon said while admitting to reports that he had cried as he wrote his 63-page ruling.
"Yes, because I am also a parent, a father," Pozon said. "I have young kids so talagang tinamaan din ako (that’s why I was affected very deeply). They are both young, the complainant is very young, the accused are very young, especially Smith. But then I have to decide based on the evidence even though na talagang masakit sa dibdib ko, (it truly pained my heart). I had to do it."
Pozon, whose eldest son is a year younger than Smith and is studying at the Mapua Institute of Technology and whose daughter is studying at the University of Sto. Tomas, said it was tough writing his decision on the Subic rape case.
The contents of Pozon’s decision were not revealed, even to his clerk of court until the clerk read the verdict in open court on Dec. 4.
Pozon said no one tried to influence how he would decide the case. He also said he did not let media reports or advocacy groups affect him either.
"I’m happy although the media followed this case closely, at least no one directly talked to me on how to decide on the case," said Pozon.
He told ABS-CBN that it took a month, more or less, to write the decision, which he kept reading until the day of the promulgation of judgment.
He said there were sleepless nights and that he had to neglect a lot of other obligations to his family and to his students at the University of the East, where he teaches law.
Pozon, not wanting credit for having made history, said he only did his job. He added that a higher court agreeing with his decision would be a big reward.
He said the higher courts rarely doubt the assessment of the lower courts insofar as the credibility of the witnesses is concerned, though there are technical issues that may be raised.
"If I will be affirmed by the High Court, it will be a great reward," Pozon said. "Of course, the most important thing is I know that I have done my job. I have rendered justice and I believe that it was the correct decision."
Pozon’s order for Smith’s detention in the Makati City Jail triggered attacks upon his person, but despite the conflicting interpretations of the Visiting Forces Agreement (VFA), Pozon said he made the right decision.
"During the arraignment, if you remember, the prosecution asked the court to take custody of the accused but I denied that because I know we have this VFA," Pozon said. "I know that the government of our country tried its best to take custody of the accused, but then the United States government invoked the right under that agreement to have immediate custody of the accused."
"That was during the proceedings. Now that the case had been decided, the court believes that the judicial proceedings are now over so the court can no longer apply that particular provision — Article 5, Paragraph 6 (of the VFA)," he added.
"Since the proceedings are now over, there is that decision already, the court believes that the applicable provision is also Article 5 — but this time Paragraph 10, because Article 6 provides this is only during trial, but Paragraph 10 says after trial," Pozon said, referring to provisions of the VFA stating who gets custody of an American soldier while on trial and after conviction.
He also said the appeal of a judgment is not included in the one-year period within which a US serviceman can be tried in a Philippine court, as stated in the VFA.
Pozon said his decision or interpretation of the VFA does not mean that a motion for reconsideration of the commitment order will be junked outright.
"What the court said in its decision is, until such time that our government and the government of the US have agreed on the facilities where Smith should serve his sentence pending his appeal," Pozon said. "If there is that agreement signed by the authorities of both countries submitted to the court and asks the court to take note of that, to consider, then the court will have to abide by that."
Minimum rules met
Invoking the United Nations (UN) Standard Minimum Rules for the Treatment of Prisoners, the Makati City Jail (MCJ) yesterday defended the manner by which Smith is treated in the facility.
Adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders in Geneva in 1955 and approved by the UN Economic and Social Council through two separate resolutions in 1957 and 1977, the rules justify why Smith is accorded "privileges" that other people have referred to as "special treatment."
MCJ warden Superintendent Delvic Oreiro said that at least nine provisions or sections of the UN’s rules on how prisoners should treated directly apply to Smith’s case.
Sections seven and eight, he said, speak of how no person shall be received in an institution without a valid commitment order, how different categories of prisoners shall be kept in separate institutions or in separate parts of an institution — taking into account their gender, age, criminal record, the legal reason for their detention, as well as the necessities of their treatment, and how untried prisoners shall be kept separate from convicted prisoners.
Oreiro said Smith is a temporary prisoner of the MCJ who will be detained there until the US and Philippine governments decide on where he should be housed while his case is on appeal.
He said sections nine and 10 provide that "if, for special reasons such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to the rule" that there should only be one prisoner per cell and that "all accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation."
Oreiro said these provisions explain why Smith is being held at the records section of the MCJ, since it would be unsafe to mix him with other inmates because he is a temporary prisoner and is "an isolated case."
In addition to that, he said sections 19 and 20 of the UN rules speak of how "every prisoner shall, in accordance with local or national standards, be provided with a separate bed and with separate and sufficient bedding, which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness."
The UN rules also state that "every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served" and that "drinking water shall be available to every prisoner whenever he needs it."
These provisions, Oreiro said, explain why they are allowing US embassy representatives to bring Smith food and drink, considering that he has not eaten any of the MCJ food since he was detained.
He also said section 37, 38, 39, and 45 specifically apply to Smith’s case as a foreign national or a US soldier who is covered by privileges under the Visiting Forces Agreement (VFA).
"Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits," section 37 says.
"Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong. Prisoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons, Section 38 reads.
Section 39 provides that "prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorized or controlled by the administration."
Section 40 of the UN rules require that "every institution shall have a library for the use of all categories of prisoners, adequately stocked with both recreational and instructional books and prisoners shall be encouraged to make full use of it."
Oreiro reiterated that Smith is not being given special treatment at the MCJ where he spent his fourth night yesterday since his conviction last December 4.
Pozon has yet to rule on an urgent motion filed by the US Marines’ lawyers requesting that Smith be transferred to the US embassy in the City of Manila.
Evalyn Urusa, the private prosecutor in the case, and former Sen. Rene Saguisag filed their opposition to the motion, believing that the court should not allow US authorities to take custody of Smith because he has already been convicted of a crime and sentenced to 40 years imprisonment.
Oreiro said Smith’s room is still not equipped with a bed or anything one may use as a bed nor does he enjoy air-conditioning. "If they will provide such thing, then that may be okay," he said, adding that the MCJ cannot provide such things, which is why Smith is being allowed to use a long table as a bed.
Chronic budgetary constraints suffered by the Bureau of Jail Management and Penology (BJMP) have forced the bureau to limit their meal allocations per inmate to only P40 a day.
Hoping that Smith will soon be ordered removed from the facility, MCJ officials are already preparing for his exit and await a court order to this effect.
Makati court ignores RP-US note on Smith By Michael Punongbayan The Philippine Star 12/09/2006
The Makati City Regional Trial Court (RTC) refused yesterday to issue a ruling on whether or not convicted rapist Lance Corporal Daniel Smith of the United States Marines should be returned to US custody based on an agreement signed by US Ambassador Kristie Kenney and Chief State Prosecutor Jovencito Zuño.
RTC Judge Benjamin Pozon instead scheduled for Monday a hearing on a motion for reconsideration of his Dec. 4 order to detain the 21-year-old Smith at the Makati City Jail (MCJ).
"It doesn’t seem appropriate that (Zuño is the signatory)," Pozon said when asked why he did not honor the agreement between US and Philippine authorities to detain Smith at the US Embassy while his case is on appeal.
A new agreement signed by Kenney and Justice Secretary Raul Gonzalez was later sent to Pozon’s office. But the judge also ignored it.
Smith, who was found guilty of raping a 23-year-old Filipina identified only as "Nicole," will have to stay at the MCJ for at least two more days.
Nicole’s lawyers have formally objected to Smith’s transfer to US custody and have threatened street protests to oppose it.
Smith is being held at the MCJ records room, which was converted into a temporary holding room.
Smith’s lawyers, Nicole’s private counsel Evalyn Ursua and former senator and human rights lawyer Rene Saguisag were ordered to attend the hearing on Monday.
Pozon also sent notices to the Department of Foreign Affairs (DFA), Department of Justice (DOJ) and the Visiting Forces Agreement (VFA) Commission.
Joan de Venecia, one of Smith’s lawyers, said the court did not act on their manifestation citing an agreement between the US and the Philippines as to where their client will be detained or who takes custody of him.
"The government of the Republic of the Philippines and the government of the United States of America agree that, in accordance with the VFA signed between our two nations, Lance Corporal Daniel Smith, US Marine Corps, be returned to US military custody at the US Embassy in Manila," the agreement read.
De Venecia said Judge Pozon’s refusal to act on their manifestation, citing the documents signed by Kenney and Zuño, means he does not honor the agreements or wants these agreements discussed further.
"I feel that, right now, because there’s already an agreement and this agreement is between the governments of the Philippines and the US, we might already be in breach of our international obligations or international law," she said.
De Venecia said they believe that orders affecting their client’s detention must come from Pozon, adding that they respect the Makati City court’s authority and jurisdiction.
However, she said other avenues or means by which Smith can be removed from the MCJ are being explored. She refused to elaborate.
Meanwhile, the Department of Justice asked Pozon to respect the VFA, which the DOJ said allows the US Embassy to place Smith under its custody until his life sentence becomes final.
Two US Embassy officials led by US legal attaché Jeff Cole visited the office of Zuño to obtain a copy of the motion signed by Gonzalez signifying that the DOJ had "no objection" to the request for immediate turnover of Smith to the US Embassy.
Zuño said the Philippine government, being a signatory to the VFA with the US government, will have to respect this agreement.
"It is now addressed to the court. It is up to the court to decide. If it rules against it, the US Embassy can go to the Court of Appeals or the Supreme Court," Zuño said. "This is a high-level matter and it will be between the DFA and the US Embassy now."
Zuño said Cole represented the Philippine government in the US in the extradition case of businessman Charlie "Atong" Ang.
"(Cole) was the one who argued, representing the Philippine government. The DFA can enter into the picture (to insist on Smith’s turnover to the US Embassy) because we are now talking about the VFA," Zuño said.
Gonzalez said he had signed another joint motion to allow Smith’s transfer to the US Embassy: "Let us find out first what will be the court’s action on this," he said.
The joint motion signed by Gonzalez supports earlier calls by the US Embassy for the Makati City RTC to permit the diplomatic post to take custody of Smith.
"(The US Embassy) claimed that they should have custody of Smith because (the) appeal is still part of the judicial proceedings and they filed a motion for immediate turnover of Smith to the US Embassy. After coordinating with the DFA, we agreed to have one position — and that is to respect the terms and conditions of the VFA," Zuño said.
Zuño said the Philippine government will have to respect the VFA: "Smith is not an ordinary citizen. He is a member of the US army participating in a military exercise. Therefore, he is covered by the VFA."
Citing Article V, Paragraph 6 of the VFA, the DFA said earlier that the US is entitled to have custody of Smith until his conviction becomes final.
In a note verbale, the US Embassy said it "reaffirms the right of the US military authorities to exercise custody of any US personnel over whom the Philippines is to exercise jurisdiction until completion of all judicial proceedings."
Zuño said the Philippines must abide by the VFA because it is a signatory to the agreement.
He said the Philippine government will ensure that Smith will not be given preferential treatment while in detention at the US Embassy: "He will be treated as a detainee."
Gonzalez earlier admitted that the Philippine government will have difficulty getting custody of Smith because of the VFA.
Smith was sentenced to life imprisonment last Monday for the rape of "Nicole" at the Subic Bay Freeport on Nov. 1 last year. — With Jose Rodel Clapano, Sheila Mae Milan, AP
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