Where should Smith be jailed?

No sooner had US Marine Lance Corporal Daniel Smith been convicted for the rape of "Nicole" than the issue turned to where Smith would be detained. The Judge ordered him held at the Makati City Jail, a move applauded by the private prosecutors. Defense counsel, on the other hand, insisted he should be confined at the US Embassy.

The Marine was immediately rushed by police to the Makati City Jail. His lawyer declared he would file a petition for a writ of habeas corpus to secure Smith’s return to the US Embassy. Smith will also appeal his conviction. His lawyers had anticipated that possibility, just in case things would go wrong, which they most assuredly have.

Under the Visiting Forces Agreement, signed February 10, 1998, "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…" (Article V, Section 5, itals. ours).

However, Section 10 of the same Article V provides that detention of the convict "shall be carried out in facilities agreed on" by the signatories. Since there has been no such agreement, Makati Regional Trial Court Judge Benjamin Pozon ruled that until such an agreement is reached, Smith would stay in the city jail.

The resolution of this issue has to be based on law and the currently effective international agreement, not on emotion or nationalist fervor. Section 5 of Art. V does say that custody of US Personnel stays with the US "until completion of all judicial proceedings." Defense counsel insists that proceedings are not "completed" until all avenues of appeal are exhausted in our judicial system, which could mean until the case reaches the Supreme Court and the latter renders a decision.

However, down that section there is this provision: "In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one year period will not include the time necessary to appeal." (Itals. ours)

Does this mean that the VFA has substituted its own definition of "completion of all judicial proceedings," so that it’s the one year period which is relevant, and not the entire period that appeals are pending in the courts? I don’t know whether this issue will be raised in the habeas corpus proceedings, or how the courts would rule on it.

Let’s not forget that, in our system, convicts have been sent to Muntinlupa to await the outcome of their appeals. Or, depending on the court’s discretion, they have also been confined in city jails. What’s important is that what happened to Smith isn’t a first, except that there is the VFA to contend with.

As for that agreement between the two countries specifying the "facilities" where US personnel should be confined, the problem would not have come up if the "authorities" of the Philippines and the United States had done their work. After all, more than eight years have passed since the VFA was signed. It is not unreasonable to expect that an understanding would have been reached by now on such a vital matter.

Of course, both countries probably did not expect a criminal case to arise, particularly since the US bases at Clark and Subic have long been turned over to the Philippines. I guess it’s just Murphy’s Law rearing its ugly head once again, i.e. when things go wrong, they will, at the worst possible time.

Since I have not read the Pozon decision as I write this, I can’t comment yet in detail on its findings. I would be most interested in the Judge’s rulings, for instance, on the relevance of the prosecution’s claims of the victim’s intoxication, in answer to the defense claims of consensual sex. Nor do I know for sure whether he ruled on the materiality of the defense evidence impugning the victim’s character.

I would assume that since he found Smith guilty of the rape and junked his claims that Nicole had agreed to sex– albeit in the evidently rowdy circumstances surrounding the "sexual congress" – he may have given short shrift to both claims of the defense.

There is also some debate, now largely academic, on whether the three other accused, Lance Corporals Keith Silkwood and Dominic Duplantis, and Staff Sargeant Chad Carpientier should have been convicted for conspiracy with Smith in the rape.

On the basis of what I heard in the live coverage by ANC of the promulgation of the decision, the Judge had a basis for acquitting the three on the ground of lack of proof beyond reasonable doubt. He said, I gather, that merely cheering the rapist on while the crime was being perpetrated was not enough to prove a conspiracy to commit the crime. Since the principle of double jeopardy now operates in regard to the three acquitted US military personnel, they’re home free, literally. All we can do now is engage in academic debate about the might-have-beens.

But here’s a sobering thought, especially for those who are cheering that "justice" has been done. Smith is entitled to mount appeals, and the outcome of such appeals, all the way to the Supreme Court, is uncertain. The Pozon decision might be sustained, or it might be overruled and Smith acquitted too.

Are "diplomatic" considerations relevant here? Will the Philippines, a reputedly "weak" country be vulnerable to pressure by a "mighty" United States? I certainly hope not, although I am well aware how sheer pragmatism often dominates international relations. Still, flawed as our justice system is, it does work, as a general rule.

I, for one, am unconvinced that the justice system is so fundamentally defective as to be totally unreliable. Despite all the tears, invective and media hype this case of Nicole had to endure, it is arguable that the Judge reached the right conclusion, even as his decision probably failed to satisfy everyone with anything to say.

Now, the "central" issue: Does the VFA work? Well, it clearly needs some reworking, and maybe this case suggests some avenues of amendment, such as in the areas of custody of accused personnel, trial publicity and, most important, when "judicial proceedings" may be deemed "complete."

But I can’t go so far as to assert that the VFA does not work. Just like our justice system, certain deep flaws have surfaced, but it’s possible to say that VFA can work.

A necessary caveat is that when US military personnel are here, they should realize they are guests. Our society welcomes guests. as long as they don’t act like crude Borats and run rough-shod over our sensibilities. Much less can they commit crimes and run to Uncle Sam to evade responsibility.