Palace defends Smith transfer to US custody

The government defended yesterday the abrupt transfer of convicted rapist Lance Corporal Daniel Smith to the US Embassy the other night, pointing out the Visiting Forces Agreement (VFA) had authorized US custody of the American Marine until all judicial proceedings are exhausted.

Chief Presidential Legal Counsel Sergio Apostol said the transfer was allowed under the original order of Makati City Judge Benjamin Pozon, who sentenced Smith to 40 years in jail on Dec. 4 for the rape of a Filipina last year.

Apostol said the decision of Pozon was to detain Smith at the Makati City jail first before any transfer can take place once an agreement for custody is reached between the Philippine government and the United States.

Under the VFA, US soldiers charged with a crime in the Philippines should remain in US custody until the conclusion of legal proceedings on the case.

The provision in the VFA, as both Washington and Manila had interpreted, should mean Smith should remain under the custody of the US until the appeal in his case has been exhausted.

The US Embassy, through Press Attaché Matthew Lussenhop, confirmed Smith had been moved to their custody.

Lussenhop, however, admitted the absence of a court order authorizing the transfer but revealed "a (Philippine) government institution" had worked on Smith’s transfer to their custody.

"There was an order but I couldn’t comment further. I can’t go into details and which specific government institution," Lussenhop said. A senior foreign affairs official, who asked not to be named, confirmed the Department of the Interior and Local Government (DILG) facilitated the release of Smith to the custody of the American embassy.

The official claimed a copy of a DILG legal opinion that was sent to the US Embassy was used as basis for the midnight transfer of Smith.

Solicitor General Eduardo Antonio Nachura, for his part, confirmed a legal opinion was made by Justice Secretary Raul Gonzalez on the issue of custody.

He said Gonzalez had issued a nine-page legal opinion to the DILG, the agency that has supervision and control over the Bureau of Jail Management and Penology (BJMP) that took custody of Smith after his conviction by the Makati City court.

Gonzalez had stated Smith could be transferred to the US Embassy if an agreement over the issue of custody has been reached between Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney, Nachura said.

Nachura said the opinion pointed out no legal impediment for Smith’s transfer from the Makati City jail to the custody of the US authorities.

He said the Department of Foreign affairs (DFA), which is the party-in-interest involving the VFA, has already entered into an agreement with the US Embassy expressing its support for Smith’s transfer to the custody of the US authorities.

"Secretary Gonzalez also said that since the CA did not object and merely noted the appeal of Smith, there is no legal impediment to effect his transfer to the custody of the US authorities" Nachura said.

Lussenhop stressed the transfer was in compliance with the terms of the VFA.

"I can confirm that Lance Corporal Daniel Smith has been transferred from the Makati City jail back to US military custody which is consistent with the terms of the VFA as an international agreement that’s binding on both the US and the Philippines," Lussenhop declared.

"He’s in US custody now in the same facility at the US Embassy where he was previously held for the duration of his trial," he added.

He stressed Smith’s transfer of custody is legal even as the Court of Appeals (CA) has yet to decide on the petition of the DFA seeking the immediate return of custody to the embassy.

The DFA had invoked the same VFA provision that provides custody of erring American servicemen should remain with the US Embassy until completion of all judicial proceedings.

"We certainly consider this in line with the VFA, which categorically provides custody is with the US until end of judicial proceedings. That’s the call of the VFA on (the issue of) custody," Lussenhop said.

Lussenhop also denied Washington had resorted to "arm-twisting" to pressure Manila to transfer Smith to US custody.

Acting DFA spokesman Eduardo Malaya said the turnover of Smith to the US custody is in compliance with Philippine treaty obligations.

"It (transfer) doesn’t diminish the gravity of his crime for which he has been convicted under our laws," Malaya said.

Malaya added the US officials have given the assurance that Smith would not leave the country at any time during the appeal.

From the Makati City jail, Smith was taken directly to the JUSMAG (Joint US Military Advisory Group) office inside the US Embassy compound in Manila.

Conspiracy

On the other hand, Evalyn Ursua, the lawyer for "Nicole," the name given to 23-year-old rape victim, said Smith’s transfer to the US Embassy was "a clear rape of our Constitution."

"The US government should be made to answer for intervening in our domestic affairs," she said. "In our legal system, if a criminal is convicted and put in jail, he cannot be released even by the President of the Philippines unless it’s a court order."

Ursua claimed conspiracy was committed in what she called "escape" of Smith.

She said charges of contempt should be filed against the Office of the President, the Department of Justice (DOJ), the Department of the Interior and Local Government (DILG) and the Makati City Jail Warden.

"They all conspired in hatching a plot to get Smith out of the city jail. They even carried it out during the time that the court is not holding office because of the holidays," Ursua lamented.

The DILG, through Undersecretary for Public Safety Marius Corpus, said there was nothing illegal in the midnight custody transfer of Smith.

Corpus said the transfer conformed with the court’s decision on his "temporary commitment" to the Makati City jail.

Corpus justified the transfer saying the Philippine government is only exercising its executive powers in handing down Smith to the US Embassy.

He pointed out the second agreement signed between Kenney and Foreign Affairs Secretary Alberto Romulo last Dec. 19, which states that in accordance with the VFA, Smith should be returned to the custody of the US Embassy in Manila.

The new agreement also states the Philippine government, the Philippine National Police (PNP) and the DILG will be given "inspection rights" to Smith’s cell inside the embassy.

Corpus said the new agreement also stated that Smith "will be guarded round-the-clock by US military personnel."

Nachura said Pozon had even said the DOJ is not the proper authority to move for transfer after he junked Smith’s petition, which was supported by the agreement between the DOJ and the US embassy expressing the Philippine government’s support for the embassy to take custody of the convicted American Marine.

"Another reason is that the pending case before the CA has only been noted, but was not objected to by the CA," Nachura said.

Gonzalez had claimed the reason for denying the transfer of Smith’s custody had "ceased to exist" since the Philippine government had complied with the court order by way of "submission of the agreement signed by the Secretary of Foreign Affairs whom the honorable judge has specifically named as having the authority to sign the same."

Pozon earlier turned down the separate agreements signed by Kenney with Chief State Prosecutor Jovencito Zuño and Gonzalez, saying the two governments should decide to bring back Smith’s custody to the US Embassy as was stated in the VFA.

Pozon, however, argued that the provision in the VFA did not apply after a conviction.

Pozon said neither Gonzalez nor Zuño are the "appropriate" Philippine officials who can legally enter into such agreement and ask for transfer of custody because the function legally belongs to President Arroyo or to the DFA Secretary.

Smith had sought a temporary restraining order from the CA against the decision of Pozon to detain him at the Makati City jail immediately after his conviction.

The court rejected that petition on Dec. 19, but the government appealed again.

Nachura earlier warned that the continued detention of Smith at the city jail "will have tremendous repercussions on our diplomatic relations with other sovereign states, especially the United States of America."

The case has tested relations between the two nations and challenged the validity of the VFA about the legal rights of US soldiers charged with a crime in the Philippines.

The rape case has also sparked street protests and revived anti-American sentiments in the former US colony.

The US had canceled its annual joint military exercises with the Philippines in 2007 over the issue of the custody of Smith. - with Jose Rodel Clapano, Jaime Laude, Rhodina Villanueva, AP, AFP