Palace vows to protect RP sovereignty in Smith case

MANILA, Philippines - Faced with mounting criticism on its handling of the custody of convicted rapist Marine Lance Corporal Daniel Smith, Malacañang admitted yesterday that its hands are tied at the moment but insisted that the sovereignty of the country would be protected at all times.

Press Secretary Cerge Remonde reiterated that the position of the government would be to keep the status quo on where Smith would be detained, pending the outcome of the appeal on his conviction.

Based on the interpretations made on the Visiting Forces Agreement (VFA), Smith could remain under the custody of the US Embassy until such time that there is a final ruling on his case.

After a Makati City regional trial court judge convicted him in 2006, Smith elevated his case to the Court of Appeals (CA).

Remonde noted that perceptions on how the case of Smith is being handled are “largely fueled by ideological forces or reasons.”

He stressed that the Philippines, just like any nation, must follow the principles of international law and amity.

While the US has shown its track record of protecting its citizens, particularly military servicemen, at all costs, Remonde expressed optimism that some changes would be seen under the new administration of President Barack Obama.

“I think President Obama wants to change the image of the United States to the rest of the world. The US may be more considerate about issues of sovereignty,” Remonde said.

Relying on ‘good faith’

SC spokesman Jose Midas Marquez said the High Court is relying on “good faith” of the US under the VFA.

Marquez said while the SC cannot compel the US to transfer Smith from the US Embassy in Manila to another detention facility under the control of the Philippine government, it can cling to the VFA agreement upholding Philippine authorities in cases of convicted American personnel.

He explained that the US cannot be compelled by the SC simply because “it is not a party in the case” and “no one impleaded to the US,” meaning it was not among the respondents in any of the three petitions that questioned the detention of Smith in the US Embassy and sought the declaration of VFA as unconstitutional.

“We don’t want to preempt the agreement. But if there will be abuses in the implementation of the order to transfer, that issue can be brought to the Court,” he stressed.

Associate Justice Adolfo Azcuna, who penned the 20-page SC decision, affirmed Marquez’s explanation.

“The US is not a party, so we cannot order the US to negotiate (for the transfer). The Court ordered DFA (Department of Foreign Affairs) to negotiate,” stressed Azcuna, who is retiring on Feb. 16.

Voting 9-4 with two inhibitions, the SC justices ruled that the agreements signed by Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney on Dec. 19 and 22, 2006, which allowed the detention of Smith under US military custody at the Rowe Bldg. of the US Embassy, were “not in accordance with the VFA.”

The court upheld as constitutional the VFA, but stressed that Article V Section 10 of the treaty provides that confinement or detention of convicted US personnel should be done “by Philippine authorities.”

The SC ruled that an agreement between Philippine and American governments should be forged only on the issue of which detention facility in the country Smith should be held.

But Marquez said the court did not issue a deadline for the transfer of Smith to Philippine custody, as it also ordered that he be kept in the US Embassy pending negotiations between Philippine and US authorities.

The SC also directed the CA to resolve without delay other pending petitions related to the case, including the appeal of Smith on his rape conviction.

The SC ruled that the VFA is allowed “under the RP-US Mutual Defense Treaty (signed on Aug. 30, 1951) duly concurred in by the Senate and recognized as a treaty by other contracting State,” which is provided in Article XVIII Section 25 of the 1987 Constitution.

The decision was affirmed by Senior Associate Justice Leonardo Quisumbing and Associate Justices Consuelo Ynares-Santiago, Renato Corona, Dante Tinga, Minita Chico-Nazario, Presbitero Velasco Jr., Teresita Leonardo-De Castro, and Arturo Brion.

Chief Justice Reynato Puno dissented and was joined by Associate Justices Antonio Carpio, Ma. Alicia Austria-Martinez and Conchita Carpio-Morales. Associate Justices Antonio Eduardo Nachura and Diosdado Peralta inhibited.

In his dissenting opinion, Puno said the VFA fell short of meeting the requirement set under the Constitution that the treaty should be recognized by both governments.

“The circumstances present in the case at bar and recent case law in the United States’ policy on treaty enforcement further expose the anomalous asymmetry in the legal treatment of the VFA by the United States as opposed to the Republic of the Philippines. This slur on our sovereignty cannot continue, especially if we are the ones perpetuating it,” the chief justice explained.

Puno and Carpio agreed that Smith should be transferred to the New Bilibid Prisons in Muntinlupa pending final resolution of his appeal.

Petitioners

The first group of petitioners includes former senators Jovito Salonga, Wigberto Tañada, and several lawyers, while the others were militant groups Bagong Alyansang Makabayan, Bayan Muna, Gabriela and the Public Interest Law Center.

Named respondents in the two cases were President Arroyo as concurrent Defense Secretary, Executive Secretary Eduardo Ermita, Romulo, Justice Secretary Raul Gonzalez, and Interior Secretary Ronaldo Puno.

The SC has given the counsels of the parties and the Solicitor General a maximum of 20 minutes to present their arguments.

In their petition, Salonga’s group argued that the agreements between Romulo and Kenney transferring the custody of Smith to US authorities are unconstitutional.

They added that the VFA violates the exclusive power of the SC to promulgate rules and procedures in all courts under the 1987 Constitution.

The issue on the custody of an accused or convict is a matter of procedure, according to the petitioners, which under the Constitution is within the realm of judicial power.

“Said provision of the VFA… effectively violates and infringes on the power of the Philippine courts to acquire custody over the United States personnel,” Salonga said.

Militant groups also urged the SC to stop the implementation of VFA as it allows the unlimited entry of American troops to the country for an indefinite period and engage in any kind of activity anywhere in the Philippines without need for prior consent of any Philippine authority. – With Edu Punay