Who should have custody of Smith?

(Part 2)

The lawyers of "Nicole," the complainant in the Subic rape case, have asked the Court of Appeals to transfer the appeal lodged by convicted US Marine Lance Corporal Daniel Smith before our Court of Appeals to the Supreme Court.

Her lawyers, led by former Senate President Jovito Salonga and former Senator Wigberto Tañada, argue that the appeal involves pure questions of law regarding the interpretation of provisions of an international treaty, a matter within the exclusive jurisdiction of the Supreme Court. Some lawyers’ groups claim that the Visiting Forces Agreement never came into effect for lack of ratification by the US Senate.

The CA has not ruled yet on the motion to move the case to the SC. The claim that the VFA never came into effect because that treaty was not ratified by the US Senate is, in my view, legally flawed.

Article IX of the VFA merely requires that the parties comply with provisions of their own constitutions on coming into force. The VFA does not expressly provide, as some such agreements do, that it shall be deemed a treaty requiring ratification by their respective legislatures.

Thus, the fact that the VFA was deemed a treaty by our government and ratified by our Senate does not mean that ratification by the US Senate was also required for the agreement to come into effect. Clearly, the US deemed the VFA to be an executive agreement, not a treaty. An executive agreement need not be ratified by the US Senate.

Moreover, after having implemented the VFA for over 8 years, it is a little late for this country to assert a claim of non-ratification. For example, the US has dispatched military "advisers" to Mindanao to help train our armed forces to fight the Abu Sayyaf. There have also been several dockings of US Navy vessels in the country.

These activities, among others, have been with the consent of our government. Arguably, our conduct over the years shows express recognition that the VFA is in effect.

These issues are distinct from the interpretation by Makati trial court Judge Benjamin Pozon of certain provisions of the VFA. Judge Pozon ordered that Smith be held at the Makati city jail until appropriate authorities of the two governments agree on a place for Smith’s detention or confinement by Philippine authorities. (The Court of Appeals has refused to issue a temporary restraining order against the Pozon order.)

Judge Pozon rejected pleas that Smith be turned over to the US Embassy until his exhaustion of all appeals under our law. The Judge said that Section 6 of Article V of the VFA does not apply to Smith. Rather, it is Section 10 of the same Article, regarding that agreement between the appropriate authorities of the two countries.

Both governments submitted copies of agreements which they claimed were entered into pursuant to Section 10. Judge Pozon rejected these purported agreements since they were not signed on behalf of the Philippines by the officials authorized by law.

Moreover, he said, the "facility" named in that agreement had to be a Philippine facility since, under the VFA, the responsibility to confine or detain is placed on Philippine authorities. Obviously, that facility cannot be the US Embassy because the Philippines has no jurisdiction over those premises. The ambiguity in the language of Section 6, Article V of the VFA cannot be resorted to, to diminish Philippine jurisdiction over crimes which are committed by US personnel within the territory of the Philippines.

The assumption of jurisdiction by the Philippines over the rape case, where Smith was one of the accused, was in accord with the clear letter and spirit of the VFA. His trial was conducted under the careful scrutiny of US Embassy officials. No one can plausibly assert that Smith or his co-accused were denied due process, or treated with anything less than full observance of the rights accorded them under our law.

Although Smith was convicted by the RTC, he is already availing of all the opportunities for appeal, all the way to the Supreme Court, to which he is entitled.

In my view, Judge Pozon did not strain any rule of statutory or treaty interpretation, when he ruled that Section 6 of Article V of the VFA no longer applied to Smith’s case after the completion of trial and the rendition of the judgment.

The language of Section 6 does not clearly leave custody of US military personnel to US military authorities, through the US Embassy, until the convicted member of the US military has exhausted all avenues of appeal.

The phrase "from the commission of the offense until completion of all judicial proceedings," as used in Section 6, can be read together with other language in the same section which requires that "Philippine judicial proceedings" be completed within one year," except that the "one-year period will not include the time necessary for appeal."

Thus, it is possible to construe the ambiguous language to mean that the "judicial proceedings" refer only to the trial, not further appeals, which must be completed within one year. Once trial is completed and judgment rendered, Section 6 no longer applies.

Since Philippine law allows the immediate confinement of persons convicted of capital crimes – such as rape under the Revised Penal Code – even while appeal is pending, the applicable provision must be Section 10, Article V. The said Section 10 refers to the facility where the convict will be detained or confined by Philippine authorities. That facility must indeed be a Philippine-controlled facility, not the US Embassy which is technically part of US territory.

Admittedly, all this is opinion. Only the Supreme Court has the jurisdiction to rule definitively on the correct interpretation of the VFA provisions in question.

Still, this should be the context in which further inquiry should be pursued. The controversy over Cpl. Smith’s custody pending his appeals has nothing to do with either his guilt or innocence, or the moral character of the victim "Nicole."

Neither does the custody issue provide the occasion for debating whether the VFA should be scrapped, whether current security agreements between the US and the Philippines require comprehensive review, or whether George W. Bush was arrogant in lecturing Ambassador Willy Gaa that the Philippines must observe its treaty obligations.

The precise issue is custody, and it will likely be decided by the Supreme Court after it unravels the ambiguities in the VFA. Those who think otherwise have other fish to fry. They are using Smith as pretext for other agendas.