"The Balikatan 2007 exercises, scheduled for February, have been canceled due to the current custody issue that’s still working its way through the Philippine judicial system," US Embassy Press Attaché Matthew Lussenhop said.
Balikatan is the largest joint RP-US military exercises held in the Philippines each year, involving as many as 5,000 American soldiers and a bigger number of Filipino troops.
Lussenhop said all the military exercises between the US and the Philippines set for next year are canceled until the custody issue is resolved and the government can ensure the protection of US troops participating in military exercises.
"The annual military exercises in 2007 under the Balikatan would be canceled. The reason is the current custody issue. The usual protection for US servicemen remains in doubt," Lussenhop said.
He said that if the Philippines cannot ensure the protection of US military personnel, it wouldn’t be prudent to bring in US troops to the country.
But Lussenhop stressed that the US has no plans of stopping humanitarian assistance to the Philippines.
Admiral William Fallon, commander of American forces in the Pacific, announced that the military exercise with the Philippines had been canceled due the dispute over the custody of Smith.
Fallon reportedly ordered the withdrawal of an aid team in the country that was assessing the needs of typhoon-ravaged areas and also canceled several visits by US ships.
The Court of Appeals junked last Tuesday a petition by Smith that he be transferred immediately to the custody of the US Embassy while his conviction is under appeal.
Smith, 21, of St. Louis, Missouri, was convicted last Dec. 4 of raping a Filipina identified only as "Nicole."
Makati Regional Trial Court Judge Benjamin Pozon found the Marine guilty of raping Nicole, 23, inside a moving van at the former US naval base in Subic on Nov. 1, 2005.
Smith was sentenced to 40 years in prison and was ordered by Pozon to be detained at the Makati City Jail pending the appeal of the conviction. The US soldier, however, has been detained at the Makati jail’s stock room separate from ordinary detainees, since he was convicted.
Jose Justiniano, Smith’s lawyer, had filed a motion seeking the transfer of Smith from the Makati jail to the custody of the US Embassy while his lawyers mount an appeal, which is within the provisions of the RP-US Visiting Forces Agreement (VFA).
Justiniano said under the VFA, his client should be placed under the custody of the US Embassy until the completion of the judicial proceedings.
The Department of Foreign Affairs (DFA), the Department of Justice (DOJ) and the US Embassy have already signed an agreement to the court granting the request of the Americans to return Smith to US custody.
Justiniano said Smith is being held in a facility, which contradicts the provisions of the VFA.
Pozon insisted that the VFA provision applies only during the judicial proceedings in the trial court and expires upon a defendant’s conviction, regardless of a pending appeal.
US Ambassador Kristie Kenney said last Wednesday that the Philippines is not complying with the VFA.
"What we’re working to do is to bring both sides into compliance. It’s an important agreement, it’s important for credibility internationally for the Philippines and the US that we honor that. But we’re working hard to do that together," she added.
She said both the Philippine and US governments agree that Smith should be in US custody based on the VFA provisions.
Foreign Affairs Secretary Alberto Romulo said he hopes that the court will decide on the department’s petition for the return of Smith to US custody.
"I’d hope there’s some response to this pleading that has been filed," he said.
DFA spokesman Eduardo Malaya said the department still cannot comment on the cancellation of the military exercises because they have not yet been notified by the US Embassy.
Lawyer Evalyn Ursua, counsel of rape victim Nicole, said the Philippines can survive even without the Balikatan military exercises.
"Remember we did not have that (VFA) between 1991 and 1999 after the US bases were closed and before the VFA and yet we survived," she said.
Malacañang is hoping that the cancellation of the military exercises would be just a temporary setback for RP-US relations.
Chief presidential legal counsel Sergio Apostol said the government was complying with the VFA as he expressed confidence that the Court of Appeals would reverse it decision on the custody dispute over Smith.
"We are confident (this is a temporary setback) because I think we have complied with the international agreement as evident by our actions," Apostol said.
He said the government had satisfied an earlier argument of Pozon that the agreement on Smith’s custody must be between the two governments through proper representatives and not the justice department.
Foreign Secretary Romulo and US Ambassador Kenney have already signed the agreement returning Smith to US custody, as representatives of the two countries.
Meanwhile, a Malacañang official said the administration is rushing efforts to prevent a possible diplomatic rift between the Philippines and the US.
A top Palace official who refused to be identified, said there would be efforts to talk with US officials and explain that the judiciary is an independent branch and cannot be forced by Malacañang to return Smith to US custody.
"What can we do if our allies cannot understand us? Definitely there will be some security implications but the extent of that, I don’t know yet," the official said.
Justice Secretary Raul Gonzalez blamed Pozon and the Court of Appeals for straining RP-US relations due to the custody dispute over Smith.
"We cannot blame the US for its actions because we don’t seem to know how to respect our treaty with them. That is unfortunate because the government has always been willing to comply with its treaty obligations. Unfortunately we cannot avoid the process of the courts," Gonzalez said.
He blamed Pozon for not respecting the provisions of the VFA.
Sen. Rodolfo Biazon, chairman of the Senate committee on national defense and security, said the US decision to cancel the Balikatan exercises is a form of "arm-twisting."
He said the US move is a hostile act, which is an attempt to force the Philippine government and the justice department to reconsider the decision.
"Balikatan exercises arise from security needs. Maybe the US no longer sees the need for them. If it thinks otherwise, we should explore other allies and less iniquitous pacts," said Senate Minority Leader Aquilino Pimentel.
The US Embassy clarified that despite the row over Smith, the US will continue ongoing humanitarian assistance.
The US is one of the foreign governments that earlier gave their commitment to the United Nations to help raise a $46-million emergency fund for the rehabilitation of typhoon-ravaged areas in the Philippines. - WIth Aurea Calica, Christina Mendez, Paolo Romero, Jose Rodel Clapano, Michael Punongbayan, AP, AFP