Smith no longer at US Embassy, lawyer claims

MANILA, Philippines – Convicted rapist US Marine Lance Corporal Daniel Smith is no longer inside the premises of the US Embassy in Manila, University of the Philippines law professor Harry Roque told justices of the Supreme Court yesterday.

In yesterday’s oral arguments on Smith’s custody, Roque, who acted as counsel for petitioner former Senate president Jovito Salonga, said that he received information last Sept. 4 that Smith is now being housed somewhere in Quezon City.

He said that even US Ambassador Kristie Kenney confirmed his information when she was quoted by newspaper reports that Smith is now in US custody in another compound.

The SC held the oral arguments not only to discuss Smith’s custody issue but also to tackle the unconstitutionality of the Visiting Forces Agreement (VFA).

Pacifico Agabin, counsel for petitioner Bagong Alyansang Makabayan (Bayan), argued that the court’s Oct. 10, 2000 decision in the Bayan vs. Zamora case be revisited on the account of recent developments, particularly on the presence of US military forces in Mindanao.

In that decision, the court declared that the VFA is constitutional on several grounds, including the presence of troops, but not permanent US military bases in the country.

Agabin told the court that in an interview over television show “Strictly Politics,” retired Lt. Gen. Edilberto Adan, VFA Commission chairman, revealed that the Armed Forces of the Philippines and the US Pacific Command conduct between 60 and 80 exercises a year.

He also claimed that there are now between 400 and 600 US military troops in the Philippines, mostly “spread across Mindanao.”

Justice Presbitero Velasco then ordered Agabin to submit to the court a copy of Adan’s interview.

On Jan. 24, 2007, Salonga and former senator Wigberto Tañada filed an amended petition with the SC where they stressed that the Mutual Defense Treaty of 1951 is inapplicable to the VFA.

In their 46-page motion to admit the attached amended petition, Salonga and Tañada also argued that the agreement signed by Romulo and Kenney which allowed Smith’s transfer to the US Embassy for custody, was unconstitutional.

Salonga explained that the MDT does not apply to the VFA since the treaty speaks of an “external armed attack.”

Smith, who took part in the 2005 Balikatan exercises, was found guilty by Makati RTC Branch 139 Judge Benjamin Pozon of raping  “Nicole,” a Filipina on Nov. 1, 2005 inside the Subic Bay Freeport. He was sentenced to a maximum 40 years in jail.

Smith then contested Pozon’s order to commit him to the Makati City Jail, saying his custody should remain with US authorities until the completion of judicial proceedings.

The CA later ruled that the Philippine government has jurisdiction and custodial right over Smith under the provisions of the VFA that governs the conduct of RP-US joint military exercises.

‘Junk VFA’

Women’s group Gabriela, one of the organizations which supported rape victim Nicole in her legal battle against Smith, renewed calls yesterday to junk the VFA.

The group said the agreement is unconstitutional and violates the Philippines’ sovereign rights.

“Despite the guilty verdict of the Philippine court, the US government was still able to get custody of its rapist soldier. Clearly, this violates our sovereign right to punish anyone who has committed a crime within our territory,” said spokesperson Joms Salvador.

The transfer of Smith’s custody to the US Embassy in December 2006 was enforced by virtue of Article V Section 6 of the VFA, which states that “the custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.”

“This provision clearly undermines not only the power of the Philippine court, but the basic right of Filipinos to seek redress over a violation of their person, notwithstanding the nationality of the violator,” Salvador said.