‘GMA can’t order Smith’s transfer’

The lawyer of the victim of convicted rapist US Marine Lance Corporal Daniel Smith said President Arroyo will be committing an illegal and impeachable offense if she orders the transfer of custody of the detained American to the US Embassy in Manila without a court order.

"That (order to transfer custody of Smith) would be a criminal act. That would be a usurpation of judicial functions by the executive. It would be a culpable violation of the Constitution, an impeachable offense," said lawyer Evalyn Ursua, counsel of Smith’s rape victim identified only as Nicole.

Ursua was reacting to the statement of Presidential Legal Counsel Sergio Apostol that the President could actually order the transfer of Smith from the Makati City Jail, where the American is detained, to the US embassy.

"That’s terrible. It will not be simply an act punishable by the rules of court but rather a criminal act punishable by the Revised Penal Code," she told The STAR as she expressed outrage over Apostol’s advice.

Ursua said ordering Smith’s transfer from the Makati jail without a court order would be a usurpation by the executive department on the function of the judiciary.

The Court of Appeals (CA) had earlier junked Smith’s petition for a temporary restraining order (TRO) seeking to stop the implementation of the order of the Makati Regional Trial Court to detain the US Marine at the Makati jail.

Smith, 21, of St. Louis, Missouri, was convicted last Dec. 4 of raping Nicole, 23, inside a moving van at the former US naval base in Subic on Nov. 1, 2005.

Makati Regional Trial Court Judge Benjamin Pozon sentenced Smith to 40 years in prison and ordered that the American be detained at the Makati jail pending the appeal of the conviction. The US soldier, however, has been detained at the jail’s records 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 work 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 judicial proceedings.

The Department of Foreign Affairs (DFA), the Department of Justice (DOJ) and the US embassy have already signed an agreement that the court should grant the Americans’ request to regain custody of Smith.

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.

Ursua said the President is duty bound to enforce the law and uphold and protect the Constitution. Apostol is actually telling President Arroyo to violate the laws of the land, she said.

"And by simply saying that, Apostol can be cited for contempt of court. He, as a member of the Philippine Bar Association (PBA), can be cited for violating the code of professional conduct and charged for disbarment," she said.

Ursua said the executive department is indeed the jailer but it jails persons based on judicial orders because its function is to implement and enforce the law.

However, she stressed that the executive cannot act without the judiciary’s orders because the Constitution provides that no one may be imprisoned or detained except by virtue of a judicial order which means that no one may also be removed from detention without the same.

Malacañang said yesterday there is no more reason for Pozon not to order the city jail to turn over Smith to the custody of the US embassy after the executive branch already complied with the judge’s conditions.

Apostol said the President will no longer intervene in the case as the Palace is confident that Pozon on his own or the Court of Appeals (CA) will order the transfer of Smith from the Makati jail to the US embassy after Solicitor General Antonio Nachura and Justice Secretary Raul Gonzalez filed a motion for reconsideration on Thursday before the appellate court.

He said there is already an agreement between the Department of Foreign Affairs and US Ambassador Kristie Kenney that Pozon requires in order for him to turn over Smith.

"We are optimistic that the CA will rule this time in our favor because the Executive branch has complied with Judge Pozon’s requirements and has followed his decision," Apostol said, referring to the joint manifestation of the Philippines and the US desiring Smith’s transfer to US custody.

"The President will not have to personally take charge of the issue because we are confident that Smith will be turned over," he said.

He said the matter of Smith’s custody was discussed during a meeting of Cabinet officials with the President in Malacañang last Thursday, but he did not elaborate.

"Let’s wait for the decision (of the CA)," Apostol quoted Mrs. Arroyo as saying after she was told of the latest developments in the case.

Ursua said those lawyering for Smith "are distorting everything to please the Americans and corrupt everything for the short-term objective of pleasing the US."

"What are they teaching our law students? If I were a student, what would I think? If I were a professor, how would I explain this to my students?" she asked.

Former senator Rene Saguisag, who is also one of Nicole’s lawyers, said the President is definitely being given wrong and incredible legal advice.

"That is spiteful of the judiciary. Baka siguro nakainom. I cannot believe it. Sasabihin na i-co-contempt lang naman kami? This is very sad," he said referring to Apostol’s statement.

Saguisag explained that Smith’s prolonged detention at the Makati City Jail is actually "their fault from the beginning," because proper authorities did not immediately agree on where the US Marine will serve his sentence or where he will be detained pending the appeal of his conviction. 

"As early as December 4 the judge was already asking for an agreement. Natulog sila sa pansitan. I even had to send a letter to (Foreign Affairs Secretary Alberto) Romulo to observe the niceties. This is their fault," Saguisag said referring to Pozon’s ruling as to where the American soldier would be detained until the Philippine and US governments agree on a facility where he will be housed for as long as the place is a Philippine-run facility and not the US embassy.

"If they studied carefully what Judge Pozon was seeking, wala na sana si Smith sa Makati jail. We cannot give him to the US completely eh, they can ship him out in a minute," he added.

Saguisag maintained that those wanting to give Smith to US custody are insisting on an "unreasonable interpretations" of the VFA.

"I cannot imagine that it was the intent (of the treaty) to give Smith to US custody even after conviction," he said believing that the US’s right to take custody of Smith under the VFA ended after the Makati City court found him guilty.

Meanwhile, the US Marine’s parents Jim and Donna Smith said in an email message sent to members of the Justice for Daniel Smith (JDS) group that they are very thankful to the supporters of their son.

The Smiths told JDS member Grace Santos that they are happy that there are people in the Philippines who are helping their son go through these very difficult times.

"We are Dan’s parents and we both want to take the opportunity to tell you all how much it means to us and our family to know that there are people out there that are supporting Dan," the Smiths said in the email message.

Santos said the JDS members are glad to hear from Smith’s parents.