Olongapo SubicBay BatangGapo Newscenter

Sunday, December 17, 2006

'Nicole' to ask CA not to interpret VFA in custody case

SUBIC rape victim "Nicole," as she is publicly known, is now pitted against her former defender -- the Philippine government -- in a battle to keep her convicted rapist, US Marine Daniel Smith, in a Philippine jail as well as to question the constitutionality of certain provisions of the Visiting Forces Agreement (VFA).

Nicole's private lawyer Evalyn Ursua said Saturday that her client would file a motion on Monday to stop the Court of Appeals from deciding on the bid of Smith to be transferred from the Makati City Jail and returned to US custody pending the appeal of his December 4 conviction.

Ursua said Nicole will point out that she had filed a petition questioning the constitutionality of some provisions of the VFA before the Supreme Court as early as June 16 and therefore "the CA should not preempt [the high court] on the matter."

On the other hand, Smith's bid is backed by the Department of Justice, whose lawyers prosecuted the rape case, which agrees that Smith's transfer to the custody of the US embassy is the government's obligation under the VFA.

The Department of Foreign Affairs has also warned that the decision of Makati Judge Benjamin Pozon to keep Smith in the Makati jail will have "tremendous repercussions" on the country's diplomatic relations with the US.

In a 16-page petition-in-intervention filed Friday, the DFA warned: "The government's adherence to its treaty commitments is truly imperative. Any act of derogation therefrom will markedly diminish our credibility as a member of the international community."

A provision in the VFA states that accused visiting troops would stay under the custody of US authorities "until completion of judicial proceedings." The US and Philippine governments both agree this means Smith can stay at the US embassy until his appeals with higher courts are heard.

On December 13, or 10 days after convicting Smith, Pozon denied for lack of merit the convict's bid to be returned to US custody. According to the Makati judge's interpretation of the VFA, US custody of Smith was ''terminated after the completion of the trial and
rendition of judgment of conviction."

The US Embassy said Pozon's ruling ''reflects a misunderstanding of Philippine obligations under the terms of the VFA during judicial proceedings." US President Bush himself has expressed his concern on the matter.

Meanwhile, Smith, 21, remains at the Makati City Jail but has been given his own space at the jail's records section, where he is accompanied day and night by US security personnel. By Volt Contreras - Inquirer


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