Smith to spend Christmas in Makati jail as CA rejects TRO

US Marine Lance Corporal Daniel Smith will spend Christmas and New Year at the Makati City Jail after the Court of Appeals (CA) junked yesterday his petition for a temporary restraining order (TRO) seeking to stop the implementation of the order of the Makati Regional Trial Court.

Smith was convicted of raping a 22-year-old Filipina and sentenced last Dec. 4 by Makati Judge Benjamin Pozon to 40 years in prison.

In a four-page resolution penned by Associate Justice Apolinario Bruselas Jr. and concurred in by Associate Justices Josefina Guevarra-Salonga and Fernanda Lampas-Peralta, the appellate court’s special 16th division said a TRO being sought by Smith is not warranted.

"A temporary restraining order is not warranted. A TRO may not be granted at this time because the meat of the herein petition precisely involves a determination of the regularity of the act of respondent judge in directing confinement in the Makati City Jail," the CA said.

The CA did not agree with the claim of Smith that a grave and irreparable injury would befall him pending determination of his petition for certiorari.

"The order has been implemented and the petitioner is now confined thereat. We do not share petitioner’s view that a grave and irreparable injury would befall him pending determination of his petition," the CA said.

The court said Smith was subjected to a "full-blown trial" by Pozon and he was accorded with all the rights of an accused and found guilty of the crime of rape.

"The long and short of it is that a full-blown trial has been held with all the rights of an accused accorded him. He has been found guilty and convicted accordingly, albeit with the remedy of an appeal," the CA said.

The justices said it does not want to preempt its hearing on the petition for certiorari filed by Smith, adding that the issuance of a TRO would in effect grant Smith a permanent injunction that would reverse Pozon’s order to have Smith detained at the Makati jail "even before the benefit of a hearing afforded the respondents and thus, without the benefit of a full-blown deliberation on the main issue.

"If a TRO issues, that is, stopping confinement in the Makati City Jail we would in effect be reversing the confinement order and finding irregularity, even before we would have had the opportunity to determine whether or not the respondent judge indeed gravely abused his discretion when he issued the questioned orders," the justices said.

They said issuing a TRO would make it commit grave abuse of discretion.

"In a manner of speaking, it would amount to putting the cart before the horse, an absurd and silly situation. We would thus, ourselves, be possibly committing a grave abuse of discretion. Given the foregoing circumstances, a TRO is not warranted," the CA said.

The court also ordered Pozon, the warden of the Makati City Jail and Solicitor General Antonio Eduardo Nachura to submit within 10 days their comment on the petition for certiorari filed by Smith.

Last Monday, former senators Jovito Salonga and Wigberto Tañada and Smith’s 23-year-old Filipina rape victim Nicole also asked the CA to transfer to the Supreme Court (SC) the petition for certiorari filed by the lawyers of Smith seeking the soldier’s transfer from the Makati jail to the custody of the US Embassy.

Nicole’s lawyer Evalyn Ursua, Salonga and Tañada said that 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 6 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 said.

Salonga and Tañada, who both voted against the lease extension of US bases in 1991, cited 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 High Court.

"The petition for certiorari of Smith filed with the CA involves pure questions of law regarding the interpretation of provisions of the Visiting Forces Agreement (VFA) which falls within the exclusive jurisdiction of the Supreme Court en banc," Salonga said.

Tañada cited that Article VIII, Section 5, paragraph 2 of the 1987 Constitution provides that the High Court 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 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."

Ursua said the CA will preempt the Supreme Court in the resolution of the pending petition for certiorari filed by the victim before the High Court "if it will not transmit Smith’s petition for certiorari to the Supreme Court."

In her petition for certiorari before the Supreme Court, she said that the victim also questioned the constitutionality and interpretation of Article V, paragraph 6 of the VFA, which was applied in the rape case filed against Smith.

"The said petition (of the victim) before the Supreme Court 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 6 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 US authorities until the judicial proceedings against him are terminated.

Ursua said Nicole and Smith both questioned Pozon’s interpretation of the term "judicial proceedings" as used in Article V, paragraph 6.

"The interpretation of judicial proceedings is an issue that was also raised by movant (victim) in her petition before the Supreme Court. Given the foregoing, movants respectfully submit that the instant petition of Daniel Smith should be referred by the Court of Appeals to the Supreme Court in deference to the primary jurisdiction of the Supreme Court over the petition pending before the latter court which involves the same parties and the same and/or similar issues," Ursua said.

Solicitor General Antonio Eduardo Nachura also filed a petition-in-intervention, representing the Department of Foreign Affairs (DFA), calling for Smith’s transfer from the Makati jail to the custody of US authorities.

Nachura also asked the CA to nullify Pozon’s rulings, issued last Dec. 4 and 13, which ordered Smith’s detention to the Makati City Jail and junking the request of the US Embassy to transfer him to its custody.

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.

Pozon, according to Nachura, wrongfully interpreted the provisions of the VFA when he ordered Smith’s continued detention at the Makati jail.

Nachura said Smith’s continuous detention at the Makati jail will seriously affect the Philippine government’s relationship with the US government.

In a ruling last Wednesday, Pozon junked the request of the US to take 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. — With Christina Mendez, Pia Lee-Brago