Clearly ambiguous

Was the Visiting Forces Agreement (VFA) violated by Makati Regional Trial Court (RTC) when it refused to turn over the custody of rape convict Daniel Smith to the US Embassy but instead ordered his continued detention at the Makati City jail while his appeal has not yet been finally resolved?

The answer to this question depends on which side of the fence you belong. If you are on the side of Smith and the US and Philippine governments, your answer is yes. But if you are on the side of the victim and the women’s rights groups backing her up your answer is no. Actually what ever may be the ruling of RTC Judge Benjamin Pozon on this custody issue will be questioned by those who do not agree with it. This disagreement apparently arises because of the different but seemingly valid interpretations that can be given to the particular VFA provision regarding custody of the visiting US Armed Forces members accused of committing crimes within Philippine territory. Susceptibility to varying interpretations is an indelible sign of ambiguity in this VFA provision. And given the choice of two seemingly valid interpretations, a Filipino Judge would most likely opt to adopt the interpretation favoring a countryman and upholding Philippine sovereignty.

The reviewing Appellate Courts may eventually find his interpretation erroneous but such error is at most an error of judgment not an error of jurisdiction that arises only when there is a clear case of grave abuse of discretion. Whether Judge Pozon committed grave abuse of discretion amounting to lack or in excess of jurisdiction is however still highly debatable. So instead of even joining Smith in questioning Pozon’s order and assailing him for committing grave abuse of discretion in issuing such order, the Philippine government should concentrate more in asking for a review and a revision of VFA to remove such grey areas like the custody of visiting US soldiers accused of committing crimes here. Siding with Smith on this controversy does not look good to the common tao. Let Smith fight his own battle especially when his fight is against a Filipina.

The VFA provision subject of the controversy may indeed appear clear enough. It says that "the custody of any US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with the US military authorities from the commission of the offense until completion of all judicial proceedings". The words judicial "proceeding" may be used synonymously with "action" or "suit" to describe any act done by authority of a court of law and every step required to be taken in any cause by any party (Gonzales v. Gonzales 240 Mass.159, 133 N.E. 855, 856, Black’s Law Dictionary p. 1368). Considered in the light of its legal meaning, "proceeding" really include all the steps and measures adopted in the prosecution or defense of an action including appeal. The problem however is that another part of the VFA fixed a deadline of one year for our courts to terminate the trial otherwise the US may no longer be held responsible for making the accused available for judicial proceedings. Apparently, the RTC met the deadline and found Smith guilty as charged for an offense punishable by reclusion perpetua which under the constitution is non-bailable (Article III Section 13). Releasing Smith into the custody of the US runs counter to the said constitutional provision. In fact Filipino convicts of capital offenses are already committed to prison pending appeal of their cases. Is Smith more favored over Filipinos convicted of the same offense?

To be valid and enforceable in this jurisdiction, all laws, treaties, international or executive agreement must be constitutional. While our country really has to honor its International Agreements, it is understood that those agreements have been entered into conformably with our Constitution. International Agreements must always have interpretations consistent with the sovereign charter of the land. In the case of the VFA, its provision giving custody to the US of any of its personnel until completion of all judicial proceedings should therefore be interpreted to mean until the trial has been terminated with the accused being convicted of a non-bailable capital offense. Giving such interpretation to the VFA that will release Smith after he has already been convicted by the trial court of a non-bailable offense is constitutionally questionable.

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