High Court asked to return Smith custody to RP
NICOLE, the private complainant in the Subic rape case, asked the Supreme Court on Monday (SC) to void the agreement signed by the Department of Foreign Affairs (DFA) with the US Embassy that paved the way for the transfer of convicted rapist Lance Corporal Daniel Smith from the Makati City Jail to the embassy.
At the same time, Nicole also asked the high court to issue an arrest warrant against Smith and to direct various government agencies to take steps in returning the convicted felon to the fold of Philippine jurisdiction.
In a petition for certiorari, the 22-year-old Filipino victim, through her lawyer Evalyn Ursua, accused Cabinet officials of committing "grave abuse of discretion" in entering into an agreement last December 22 with US Ambassador Kristie Kenney, which was subsequently used as the basis for the transfer of Smith to the US Embassy.
According to Ursua, the agreement is invalid basis for "effecting the release of Daniel Smith without court authority and in turning him to over to the US embassy."
"Due process demands that custody over Smith, who has been found guilty beyond reasonable doubt by the trial court of the non-bailable crime of rape, be detained in a Philippine jail for the entire duration of the judicial proceedings including during the pendency of his appeal, in accordance with our rules of procedure and the long standing practice in our judicial system," the petitioner said.
Smith, along with Foreign Affairs Secretary Alberto Romulo, Interior and Local Government Secretary Ronaldo Puno, Justice Secretary Raul Gonzalez Sr., Executive secretary Eduardo Ermita, and Presidential Legal Counsel Sergio Apostol were named respondents in the petition.
Nicole said the agreement between Kenney and Romulo, which is based on Article V, Paragraph 6 of the RP-US Visiting Forces Agreement (VFA) is "patently unconstitutional and illegal" as it seeks to grant liberty to a convicted accused.
Ursua said the 1987 Constitution provides that a person charged with a crime punishable by reclusion perpetua has no right to temporary liberty.
"Since respondent Smith has been convicted and sentenced to reclusion perpetua, he neither has the right to bail nor may he be admitted to bail, pursuant to the Constitution and Rule 114, Section 5 of the Rules of Criminal Procedure," she said.
"By entering into agreements on the return of respondent Smith to the custody of US officials respondent Romulo and Gonzalez violated petitioner's right to due process and thus committed grave abuse of discretion," the petitioner added.
Nicole sought to declare Article V, Paragraph 6 of the VFA, which is used as basis for Smith's transfer to the US embassy, as "unconstitutional and of no effect" for being "violative of petitioner's rights to due process and the equal protection of the laws."
This provision states that "the custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings."
The accord also authorized Smith's detention at the Rowe building inside the US embassy. His detention is subject to unrestricted visits by officials of the DILG.
Nicole's lawyer also assailed Malacanang's insistence that the plain language of Article V, Paragraph 6 of the VFA supports the validity of the questioned agreement signed with the US embassy last December allowing Smith's detention in a building inside the US Embassy.
"If this so-called plain language argument of the public respondents were adopted, then Article V, Paragraph 6 of the VFA should be declared unconstitutional and invalid on its face," Ursua said.
Likewise, the high court was also asked to declare the release of respondent Smith from the MCJ and his turnover to the US Embassy as violative of the Constitution, statutes and the rules of court.
Last January 3, the Court of Appeals (CA) junked the petition filed by lawyers of Smith, saying the controversy has become moot following his transfer to the custody of the US Embassy last December 29.
In the ponencia of Associate Justice Apolinario Bruselas Jr., the CA's Sixteenth Division gave weight to the "supervening event" where the Philippines and the US through the DFA chief and the US Ambassador, respectively, executed an agreement transferring Smith to US custody pending finality of all judicial proceedings.
While the appeal of Smith was dismissed for being moot, the appellate court ruled that Makati City Judge Benjamin Pozon did not commit grave abuse of discretion when he ordered to temporarily commit Smith to the Makati City Jail.
The CA declared that although the Philippine government has jurisdiction and custodial right over Smith under the provisions of the VFA, the courts may also allow the enforcement of the said diplomatic agreement. (ECV/Sunnex)
At the same time, Nicole also asked the high court to issue an arrest warrant against Smith and to direct various government agencies to take steps in returning the convicted felon to the fold of Philippine jurisdiction.
In a petition for certiorari, the 22-year-old Filipino victim, through her lawyer Evalyn Ursua, accused Cabinet officials of committing "grave abuse of discretion" in entering into an agreement last December 22 with US Ambassador Kristie Kenney, which was subsequently used as the basis for the transfer of Smith to the US Embassy.
According to Ursua, the agreement is invalid basis for "effecting the release of Daniel Smith without court authority and in turning him to over to the US embassy."
"Due process demands that custody over Smith, who has been found guilty beyond reasonable doubt by the trial court of the non-bailable crime of rape, be detained in a Philippine jail for the entire duration of the judicial proceedings including during the pendency of his appeal, in accordance with our rules of procedure and the long standing practice in our judicial system," the petitioner said.
Smith, along with Foreign Affairs Secretary Alberto Romulo, Interior and Local Government Secretary Ronaldo Puno, Justice Secretary Raul Gonzalez Sr., Executive secretary Eduardo Ermita, and Presidential Legal Counsel Sergio Apostol were named respondents in the petition.
Nicole said the agreement between Kenney and Romulo, which is based on Article V, Paragraph 6 of the RP-US Visiting Forces Agreement (VFA) is "patently unconstitutional and illegal" as it seeks to grant liberty to a convicted accused.
Ursua said the 1987 Constitution provides that a person charged with a crime punishable by reclusion perpetua has no right to temporary liberty.
"Since respondent Smith has been convicted and sentenced to reclusion perpetua, he neither has the right to bail nor may he be admitted to bail, pursuant to the Constitution and Rule 114, Section 5 of the Rules of Criminal Procedure," she said.
"By entering into agreements on the return of respondent Smith to the custody of US officials respondent Romulo and Gonzalez violated petitioner's right to due process and thus committed grave abuse of discretion," the petitioner added.
Nicole sought to declare Article V, Paragraph 6 of the VFA, which is used as basis for Smith's transfer to the US embassy, as "unconstitutional and of no effect" for being "violative of petitioner's rights to due process and the equal protection of the laws."
This provision states that "the custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings."
The accord also authorized Smith's detention at the Rowe building inside the US embassy. His detention is subject to unrestricted visits by officials of the DILG.
Nicole's lawyer also assailed Malacanang's insistence that the plain language of Article V, Paragraph 6 of the VFA supports the validity of the questioned agreement signed with the US embassy last December allowing Smith's detention in a building inside the US Embassy.
"If this so-called plain language argument of the public respondents were adopted, then Article V, Paragraph 6 of the VFA should be declared unconstitutional and invalid on its face," Ursua said.
Likewise, the high court was also asked to declare the release of respondent Smith from the MCJ and his turnover to the US Embassy as violative of the Constitution, statutes and the rules of court.
Last January 3, the Court of Appeals (CA) junked the petition filed by lawyers of Smith, saying the controversy has become moot following his transfer to the custody of the US Embassy last December 29.
In the ponencia of Associate Justice Apolinario Bruselas Jr., the CA's Sixteenth Division gave weight to the "supervening event" where the Philippines and the US through the DFA chief and the US Ambassador, respectively, executed an agreement transferring Smith to US custody pending finality of all judicial proceedings.
While the appeal of Smith was dismissed for being moot, the appellate court ruled that Makati City Judge Benjamin Pozon did not commit grave abuse of discretion when he ordered to temporarily commit Smith to the Makati City Jail.
The CA declared that although the Philippine government has jurisdiction and custodial right over Smith under the provisions of the VFA, the courts may also allow the enforcement of the said diplomatic agreement. (ECV/Sunnex)
posted by OlongapoCity Zambales at
6:20 PM
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