In a six-page special appearance filed through lawyer Evalyn Ursua, Salonga and Tañada said Smith raises pure questions of law in his petition before the CA.
"It is evident in the petition of Daniel Smith that he raises pure questions of law, namely, the interpretation and applicability of Article V, paragraph six, vis-a-vis Article V, paragraph 10 of the Visiting Forces Agreement (VFA) to the issue of his custody, either by the Philippine or US government," Salonga and Tañada said.
Salonga and Tañada, who as senators both voted against a lease extension of the US bases in 1991, said that under the Constitution, a petition for certiorari concerning an order of a lower court in which only an error or question of law is involved falls within the exclusive jurisdiction of the SC.
"The petition for certiorari of Daniel Smith filed with the Court of Appeals involves pure questions of law regarding the interpretation of provisions of the VFA, which falls within the exclusive jurisdiction of the Supreme Court en banc," Salonga and Tañada said.
They said Article VIII, Section 5, paragraph 2 of the 1987 Constitution provides that the SC has the power to "review, revise, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in (a) all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; (e) all cases in which only an error or question of law is involved."
"On this basis alone, the honorable Court of Appeals should transmit the petition to the SC. Wherefore, movants respectfully pray that the honorable court motu propio transmit the instant petition to the Supreme Court," they said.
Salonga and Tañada also said Smith also questions the interpretation of Makati Regional Trial Court (RTC) Judge Benjamin Pozon of the term "judicial proceedings" as used in Article V, paragraph six of the VFA.
Ursua said the CA will preempt the SC in the resolution of the pending petition for certiorari filed by the victim before the SC "if it will not transmit Smith’s petition for certiorari to the Supreme Court."
Ursua said that, in her petition for certiorari before the High Court, the victim also questioned the constitutionality and interpretation of Article V, paragraph six of the VFA, which was applied in the rape case she filed against Smith.
"The petition (of the victim) before the SC covers the issues that herein petitioner Daniel Smith has raised in his instant petition before the Court of Appeals, particularly in the interpretation of Article V, paragraph six of the VFA insofar as the issue of custody is concerned," Ursua said.
In his petition, Smith said that, under Article V, paragraph 6 of the VFA, he should be placed under the custody of the US authorities until the judicial proceedings against him are terminated.
Smith said Pozon erred in ordering his commitment to the Makati City Jail.
"Similarly, movant (victim) in her own petition before the SC raised the issue of who between the Philippine government and the US government should have custody of (Smith) and his co-accused during the pendency of the judicial proceedings" Ursua said.
Ursua said the victim and Smith both questioned Pozon’s interpretation of the term "judicial proceedings" as used in Article V, paragraph six of the VFA.
"The interpretation of judicial proceedings is an issue that was also raised by movant (victim) in her petition before the SC. Given the foregoing, movants respectfully submit that the instant petition of (Smith) should be referred by the Court of Appeals to the SC in deference to the primary jurisdiction of the SC over the petition pending before the latter court which involves the same parties and the same and/or similar issues," Ursua said.
Smith said Pozon committed grave abuse of discretion for insisting on his interpretation of the law that is "diametrically opposed to, and in direct contravention with the express provisions of the law," or the VFA.
"It is respectfully prayed that the honorable court direct the custody of (Smith) to revert to status quo ante, or with the US authorities at the US embassy, until completion of all judicial proceedings. After due proceedings, issue a writ of preliminary injunction in the same tenor as the temporary restraining order above" Smith’s petition read.
Solicitor General Antonio Eduardo Nachura also filed a petition-in-intervention representing the Department of Foreign Affairs (DFA). Nachura sought Smith’s transfer from the Makati City Jail to the custody of the US authorities.
Nachura also asked the CA to nullify Pozon’s rulings, issued last Dec. 4 and 13, which ordered Smith’s detention in the Makati City Jail and junking the request of the US embassy to transfer him to the custody of the US authorities.
He also asked the CA to render a new decision upholding the authority of the US Embassy to take custody of Smith until the termination of the judicial proceedings against him.
Nachura said Pozon wrongfully interpreted the provisions of the VFA when he ordered Smith’s continuous detention at the Makati City Jai.
He said Smith’s continuous detention at the Makati jail will seriously affect the Philippine government’s relationship with the US government.
"(Smith’s) continuous detention will have tremendous repercussions on our diplomatic foreign relations with other sovereign states — especially the United States of America. The government’s adherence to its treaty commitment is truly imperative," Nachura said.
He said the Philippine government’s non-adherence to the VFA will diminish its credibility.
"Any act of derogation therefrom will markedly diminish our credibility as a member of the international community. The grave and irreparable damage that the government and the Filipino people will suffer as a result thereof is totally incapable of pecuniary estimation. The government, therefore, earnestly pleads for immediate and affirmative relief from this honorable court through the immediate issuance of a temporary restraining order/or writ of preliminary injunction," Nachura said.
He said the DFA is not questioning Pozon’s verdict convicting Smith of raping the victim at the Subic Bay Freeport on Nov. 1 last year and sentenced him to reclusion perpetua.
"It, in fact, joins the people and the victim herself in their continuing crusade for justice. It lauds the expedient exercise of our criminal jurisdiction that has righteously prevailed, over all its inhabitants, regardless of their age, gender, color or nationality," Nachura said.
"Contrary to the allegation of some quarters, the people’s vigorous prosecution of the criminal case below does not conflict with the government’s correlative duty to faithfully comply with its treaty obligations, which equally form part of the laws of the land," he added.
Nachura said this consideration constrained the DFA to intervene in Smith’s bid to be transferred to the custody of the US authorities "as a real party-in-interest and pursuant to the government’s adherence to the international principle of pacta sunt servanda (promises must be kept).
"The DFA 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.
Nachura said the rape case filed against Smith is solely for the determination of whether or not the accused is guilty of the offense charged and what is the extent of his civil liability.
In a ruling issued on Dec. 13, Pozon junked the request of the US authorities that they be given custody of Smith.
Pozon said that, after a conviction is made, the accused US servicemen are to be detained by Philippine authorities, even if an appeal is pending.
The US embassy has called on the Philippine government to adhere to the provisions of the VFA, which it said provides a clear framework for the legal status of US servicemen in the Philippines.
Smith said the Department of Justice (DOJ), through its secretary, Raul Gonzalez, and the Department of Foreign Affairs (DFA) has agreed with the US embassy that, based on the VFA’s provisions, the custody over Smith should remain with the US military authorities until the completion of all judicial proceedings, including the appeals process.