Smith appeal raffled anew

MANILA, Philippines - As the government moves to regain custody of convicted rapist US Lance Corporal Daniel Smith upon orders of the Supreme Court, his appeal on his conviction advances to the Court of Appeals (CA).

After months of delay in hearing his petition to reverse the decision of the Makati Regional Trial Court in December 2006 that found him guilty of rape even after three appellate magistrates inhibited from handling the case, it was finally raffled off to the CA’s 12th division with presiding justice Monina Arevalo Zeñarosa and Associate Justices Apolinario Bruselas and Mariano del Castillo as members.

The raffle of the case was allowed last Feb. 11, the same day that the Supreme Court issued its decision ordering the transfer of Smith to the custody of Philippine authorities.

Smith, who was among the American servicemen participating in the 2005 Balikatan exercises, was convicted of raping 22-year-old “Nicole” at the Subic Bay Freeport on Nov. 1, 2005 and was sentenced to life imprisonment.

Smith’s appeal was initially assigned to the 16th division then chaired by Associate Justice Celia Librea-Leagogo.

It was expected to come out with a decision on June 2008 but Leagogo inhibited from the case claiming one of Smith’s lawyers was her friend.

Bruselas, who also inhibited later from the case since he wrote the earlier CA decision on the custody of Smith, replaced Leagogo.

Bruselas was member of the CA 15th division that upheld the legality of Smith’s transfer from the Makati City Jail to the US Embassy on Dec. 29, 2006.

Smith’s appeal was then assigned to Associate Justice Vicente Veloso, who later inhibited after learning that his daughter is a member of the law firm handling the defense of Smith.

After the verdict, Smith was transferred into US custody at the American Embassy following an agreement between Foreign Affairs Secretary Roberto Romulo and US Ambassador to the Philippines Kristie Kenney.

Voting 9-4 with two inhibitions, the SC ruled the Romulo-Kenney agreement was not in accordance with the Visiting Force Agreement (VFA) that clearly stated that Philippine authorities should hold the custody of convicted American personnel.

The High Court ordered the Department of Foreign Affairs to demand from the US the custody of Smith.

Foot dragging

Critics said the Philippine government is apparently dragging its foot in taking Smith under custody from the US.

“The delay in complying with the order of the Supreme Court that forthwith the Romulo-Kenney agreement must be renegotiated subverts the judicial supremacy of the highest tribunal,” Albay Rep. Edcel Lagman said.

Lagman stressed there is only one condition in the Supreme Court order: that the new detention facility must be agreed upon by Philippine and US authorities.

However, Lagman said the transfer of Smith “cannot depend on the self-serving option of the American authorities because this would impair the constitutional power of judicial review of the Supreme Court.”

“The Philippine government cannot just stand by and wait until the Americans are ready to talk because they may capriciously refuse to talk or deliberately procrastinate to renegotiate,” he said.

Kenney has said she would consult with her superiors in Washington DC on what to do with Smith in the wake of the SC order for his transfer.

Administration officials, on the other hand, said the new negotiations would take time.

For his part, newly retired Supreme Court justice Adolf Azcuna, who wrote the 20-page decision on Smith’s case, said the tribunal’s order could not be enforced on the US.

“The US is not a party, so we cannot order the US to negotiate (for the transfer). The Court ordered DFA to negotiate,” he said. – With Jess Diaz, Mike Frialde