OSG asks CA: Order Smith turnover to US

The government asked the Court of Appeals (CA) yesterday to void the decision of a Makati judge detaining a US Marine convicted of raping a Filipina at the Makati City Jail, and to turn him over to the custody of the US Embassy.

In a 16-page petition, Solicitor General Antonio Eduardo Nachura said Judge Benjamin Pozon of Makati Regional Trial Court wrongfully interpreted the provisions of the Visiting Forces Agreement (VFA) when he ordered the detention of Lance Cpl. Daniel Smith at the Makati City Jail.

Nachura said the continued detention of Smith at the Makati City Jail is "in utter violation of the VFA provisions which form part of the laws of the land."

Pozon maintains that the provision of the VFA allowing accused US servicemen to be held by US authorities until all judicial proceedings are completed do not apply to Smith, who has already been convicted.

Meanwhile, the private prosecutor in the Subic rape case said yesterday they were expecting the government to bring the question of Smith’s custody before the CA.

Lawyer Evalyn Ursua said the woman known only as "Nicole" must be allowed to intervene in the case before the CA because no party seems to be interested in defending the decision of Pozon.

"Talagang walang kalaban si Smith sa government, (Smith has no opponents in government)," she said.

"That’s why we will ask the court that we will be allowed to intervene."

Nachura said Smith’s continuous detention at the Makati City Jail would seriously affect Philippine relationship with the United States.

"His (Smith) continuous detention will have tremendous repercussions on our diplomatic foreign relations with other sovereign states, especially the United States of America," read the petition.

"The government’s adherence to its treaty commitment is truly imperative."

Nachura said the government decided to intervene in Smith’s petition to be transferred to the custody of the US authorities "as a real party-in-interest.

"The (Department of Foreign Affairs) is the frontline government agency of the Philippines in charge of its diplomatic relations with foreign states specifically to ensure its faithful adherence at all times to its international commitments," he said.

In the petition, Nachura asked the CA to stop Makati City Jail authorities from further implementing Pozon’s order to detain Smith.

"Upon filing of the petition-in-intervention, a temporary restraining order and/or writ of preliminary injunction be immediately issued against the continuous detention of Lance Corporal Smith at the Makati City Jail whose custody should be restored forthwith to the US authorities," he said.

Nachura said the Visiting Forces Agreement requires that "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 retain such custody until all judicial proceedings against Smith shall have terminated, except when the US authorities themselves, in the meantime, revoke it," read the petition.

"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 the VFA includes all stages of the proceedings before the trial court, as well as the appellate courts until a final and executory judgment shall have been rendered.

"Respondent judge cannot restrict the definition of such judicial proceedings as including only the final stage," read the petition.

"Indeed, when the law does not distinguish, courts should not distinguish. 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."

Nachura said the VFA also provides that the confinement or detention by Philppine authorities of US personnel shall be carried out in facilities agreed on by appropriate Philippine and US authorities.

"Both the DFA and the US Embassy agree that this provision applies only in cases where all judicial proceedings have terminated with finality," read the petition.

"As earlier stated the case of Smith is still ongoing, hence, the above provision does not apply to him yet such that any corresponding agreement in relation to his confinement or detention in the so-called facilities is still premature as of this time.

"On this score, respondent judge cannot legally compel such agreement to be forged now between the two governments for the simple reason that the suspensive condition giving rise to its application has not yet happened.

"In any event, the agreement contemplated in the foregoing provision does not refer to an international agreement or a treaty as provided under the Constitution and the 1987 Administrative Code."

Last Thursday, Smith, through his lawyer Jose Justiniano, asked the CA to stop the implementation of Pozon’s orders of Dec. 4 and Dec. 13 that he be detained at the Makati City Jail.

Meanwhile, Interior and Local Government Undersecretary Marius Corpus, acting Bureau of Jail Management and Penology (BJMP) chief said there is no need for Smith to be transferred to a maximum security jail because there is no threat to his life.

"There is no serious threat to his person," he said.

"But what we are trying to prevent is any untoward incident that might cause physical injuries on Smith. Tuloy pa rin ang temporary commitment, but we have to isolate him and ensure as provided for by the provisions in the (Visiting Forces Agreement)."

Smith cannot be likened to inmate Charlie "Atong" Ang, who was transferred from the Quezon City jail to the Metro Manila Rehabilitation Center in Taguig after the National Bureau of Investigation (NBI) confirmed threat to his life, he added.

Ang faces plunder charges along with ousted President Joseph Estrada.– With Cecille Suerte Felipe, Michael Punongbayan