RP Acts to Ease Strain in Ties
MANILA - Fearful of a strain in Philippine-American relations, the government is scrambling to meet US demand that it turn over custody of a convicted US Marine to the US embassy until his case is finished Foreign Secretary Alberto Romulo and US Ambassador Kristie Kenney hastily met Dec. 18 and agreed that Lance Cpl. Daniel Smith, who was convicted by a Makati court Dec. 4 of raping a Filipina in Subic, be detained at the US embassy based on the Visiting Forces Agreement.
This came as US President George W. Bush reportedly told Philippine Ambassador to the US Willy C. Gaa to implement the VFA which allows a convicted US soldier to remain in US custody until judicial proceedings are completed.
Both the Foreign Office and the Justice Department supported Smith’s petition because it is provided for the VFA. DFA warned that it might even affect RP-US relations.
Foreign Affairs Undersecretary for Special Concerns Rafael Seguis said Bush raised the Subic rape case issue with Ambassador Willy Gaa when the latter submitted his credentials at the White House last Dec. 9.
“Yes, it was taken up by President Bush who reminded Ambassador Gaa that the Philippines should comply with its treaty obligations," Seguis said when asked on whether Smith’s case was brought up.
In response to Bush’s query on how the Philippine government is addressing the issue, Seguis quoted Gaa as saying that “the Executive branch of government is strongly supporting the views contrary to the position taken by the honorable judge," referring to Pozon.
Seguis said the Department of Foreign Affairs (DFA) is convinced that “the US has the custody over Lance Corporal Smith during and until the completion of judicial proceedings."
In a statement issued, the DFA said Bush told the Philippine government “to respect an agreement.”
“We’re not lawyering for the accused, neither are we lawyering for the US government. This is not just a case of Smith or Nicole. It’s about our capability to live up to our treaty obligations," he said.
“We’re lawyering for our national interest,” he said as he denied accusations that the DFA is siding with the United States.
The court said this order wound ensure justice and fair play since the Department of Justice has favored Smith’s petition.
Makati Trial Judge Benjamin Pozon on Dec. 4 convicted Smith to 40 years in jail and ordered him detained at the Makati city jail for raping a Filipina in Subic in November last year.
Pozon later questioned the authority of Justice Secretary Raul Gonzales and Chief State Prosecutor Jovencito Zuno to sign an agreement with the US ambassador over the interpretation of a custody provision in the VFA. Unless the Court of Appeals immediately act on this new agreement, Smith might have to remain at the Makati jail up to the New Year.
The Romulo-Kenney agreement said “The government of the Republic of the Philippines and the Government of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to the US military custody at the US Embassy in Manila.”
When Zuno filed the appeal for transfer, Pozon said neither Gonzalez nor Zu±o is the “appropriate” Philippine authority that can legally enter into such an agreement and to ask for transfer of custody because “the function legally belongs to President Arroyo or the DFA Secretary.”
Executive Secretary Eduardo Ermita said Solicitor General Antonio Eduardo Nachura submitted the new manifestation to the CA to show that the Philippines and the US have agreed on the issue of custody of Smith based on the VFA. The CA earlier denied Smith’s appeal for transfer.
“The Philippine government is doing this to abide by treaty commitments, “ he said. But lawyers of the Filipina who was raped by Smith as well as activist groups denounced the Philippine government for acting as the ”lawyer" of the US Marine. They averred that the conviction was final and executory.
Nachura said under the VFA the custody of any US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with US military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.
“The US authority retains such custody until all judicial proceedings against Smith shall have terminated, except when the US authorities themselves, in the meantime, revoke it," he said.
“As it turned out, however, it was respondent judge who unjustly assumed and exercised this prerogative of revocation as he did so unilaterally despite the pending judicial proceedings against Smith."
Nachura said Pozon cannot restrict the definition of such judicial proceedings as including only the final state.
“Indeed, when the law does not distinguish, courts should not distinguish, “ he said.
“Additionally, courts are only mandated to interpret the law, not to amend or modify it. In this case, respondent judge clearly went beyond the plain language of the law and engaged in judicial legislation."
Smith is now detained in the stockroom of the Makati City Jail.
Superintendent Delvic Oreiro, Makati City Jail warden, said Smith was moved from the records room to the stockroom for security reasons and more privacy for him.
Oreiro said the stockroom has no bed because Smith prefers to sleep on the floor using a comforter or mattress. However, Smith has been provided an electric fan, a small table, and monobloc chairs for use of his lawyers and visitors, he added.
Oreiro said Smith is not enjoying special treatment at the city jail.
US Marine guards are working in shifts to look after Smith and that Jail guards are assigned to watch him and his room on a 24-hour basis, he added.
Oreiro said Smith spends his days reading letters and books or listening to songs using an MP3 player when he is awake and when he is not talking to his lawyers.
Smith would have to spend Christmas and the New Year in the Makati jail, which has almost 600 inmates sharing prison cells built to accommodate a maximum of only 300.
Meanwhile, Kenney said she is not in favor of a review of the VFA at present because the Philippines has not fully complied with the agreement.
In an interview over radio station dzRH, Kenney said: “I think we need to solve this particular issue first because right now we’re having a little difficulty with complying with the VFA so it’d be premature to talk about what will come next."
However, Kenney said the agreement “works very well” since the rape Case against Smith was tried in a Philippine court.
This came as US President George W. Bush reportedly told Philippine Ambassador to the US Willy C. Gaa to implement the VFA which allows a convicted US soldier to remain in US custody until judicial proceedings are completed.
Both the Foreign Office and the Justice Department supported Smith’s petition because it is provided for the VFA. DFA warned that it might even affect RP-US relations.
Foreign Affairs Undersecretary for Special Concerns Rafael Seguis said Bush raised the Subic rape case issue with Ambassador Willy Gaa when the latter submitted his credentials at the White House last Dec. 9.
“Yes, it was taken up by President Bush who reminded Ambassador Gaa that the Philippines should comply with its treaty obligations," Seguis said when asked on whether Smith’s case was brought up.
In response to Bush’s query on how the Philippine government is addressing the issue, Seguis quoted Gaa as saying that “the Executive branch of government is strongly supporting the views contrary to the position taken by the honorable judge," referring to Pozon.
Seguis said the Department of Foreign Affairs (DFA) is convinced that “the US has the custody over Lance Corporal Smith during and until the completion of judicial proceedings."
In a statement issued, the DFA said Bush told the Philippine government “to respect an agreement.”
“We’re not lawyering for the accused, neither are we lawyering for the US government. This is not just a case of Smith or Nicole. It’s about our capability to live up to our treaty obligations," he said.
“We’re lawyering for our national interest,” he said as he denied accusations that the DFA is siding with the United States.
The court said this order wound ensure justice and fair play since the Department of Justice has favored Smith’s petition.
Makati Trial Judge Benjamin Pozon on Dec. 4 convicted Smith to 40 years in jail and ordered him detained at the Makati city jail for raping a Filipina in Subic in November last year.
Pozon later questioned the authority of Justice Secretary Raul Gonzales and Chief State Prosecutor Jovencito Zuno to sign an agreement with the US ambassador over the interpretation of a custody provision in the VFA. Unless the Court of Appeals immediately act on this new agreement, Smith might have to remain at the Makati jail up to the New Year.
The Romulo-Kenney agreement said “The government of the Republic of the Philippines and the Government of the United States of America agree that, in accordance with the Visiting Forces Agreement signed between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to the US military custody at the US Embassy in Manila.”
When Zuno filed the appeal for transfer, Pozon said neither Gonzalez nor Zu±o is the “appropriate” Philippine authority that can legally enter into such an agreement and to ask for transfer of custody because “the function legally belongs to President Arroyo or the DFA Secretary.”
Executive Secretary Eduardo Ermita said Solicitor General Antonio Eduardo Nachura submitted the new manifestation to the CA to show that the Philippines and the US have agreed on the issue of custody of Smith based on the VFA. The CA earlier denied Smith’s appeal for transfer.
“The Philippine government is doing this to abide by treaty commitments, “ he said. But lawyers of the Filipina who was raped by Smith as well as activist groups denounced the Philippine government for acting as the ”lawyer" of the US Marine. They averred that the conviction was final and executory.
Nachura said under the VFA the custody of any US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with US military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.
“The US authority retains such custody until all judicial proceedings against Smith shall have terminated, except when the US authorities themselves, in the meantime, revoke it," he said.
“As it turned out, however, it was respondent judge who unjustly assumed and exercised this prerogative of revocation as he did so unilaterally despite the pending judicial proceedings against Smith."
Nachura said Pozon cannot restrict the definition of such judicial proceedings as including only the final state.
“Indeed, when the law does not distinguish, courts should not distinguish, “ he said.
“Additionally, courts are only mandated to interpret the law, not to amend or modify it. In this case, respondent judge clearly went beyond the plain language of the law and engaged in judicial legislation."
Smith is now detained in the stockroom of the Makati City Jail.
Superintendent Delvic Oreiro, Makati City Jail warden, said Smith was moved from the records room to the stockroom for security reasons and more privacy for him.
Oreiro said the stockroom has no bed because Smith prefers to sleep on the floor using a comforter or mattress. However, Smith has been provided an electric fan, a small table, and monobloc chairs for use of his lawyers and visitors, he added.
Oreiro said Smith is not enjoying special treatment at the city jail.
US Marine guards are working in shifts to look after Smith and that Jail guards are assigned to watch him and his room on a 24-hour basis, he added.
Oreiro said Smith spends his days reading letters and books or listening to songs using an MP3 player when he is awake and when he is not talking to his lawyers.
Smith would have to spend Christmas and the New Year in the Makati jail, which has almost 600 inmates sharing prison cells built to accommodate a maximum of only 300.
Meanwhile, Kenney said she is not in favor of a review of the VFA at present because the Philippines has not fully complied with the agreement.
In an interview over radio station dzRH, Kenney said: “I think we need to solve this particular issue first because right now we’re having a little difficulty with complying with the VFA so it’d be premature to talk about what will come next."
However, Kenney said the agreement “works very well” since the rape Case against Smith was tried in a Philippine court.
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