A ‘second look’ at the VFA

The Philippine and U.S., says Executive Secretary Ed Ermita, may take a second look and review the Visiting Forces Agreement. But not now, he qualifies. Until the custody issue of U.S. Marines Lance Corporal Daniel Smith is "resolved," any such review might just complicate that issue.

ES Ermita didn’t say exactly how such a review, while the custody issue remains pending before our courts, will complicate the issue. However, I can see such a complication arising if, for instance, the Philippine government agrees to transfer custody of Smith to the U.S. Embassy despite a ruling of the Supreme Court upholding the order of Regional Trial Court Judge Benjamin Pozon. I don’t see this happening though.

Judge Pozon had ordered the temporary detention of Smith at the Makati City Jail pending the conclusion of an agreement by appropriate authorities of the Philippine and U.S. governments on the Philippine facilities where the detention or confinement of Smith by Philippine authorities will be conducted.

The italicized portions of the preceding sentence need stressing because they are often overlooked in the legal battle over who should have custody of Smith while he pursues the appeal of his conviction for the capital crime of rape to our Court of Appeals and, perhaps eventually, to the Supreme Court.

Surprisingly, the legal eagles of the Philippine government are singing the same song. But they all sound woefully off-key since they are taking the side of the U.S. against Judge Pozon. Solicitor General Antonio Nachura claims, in his comment on Smith’s custody petition before the Court of Appeals, that the VFA "provides that Smith be in the custody of U.S. authorities while the proceedings of his case are still ongoing."

Pardon me, but Section 6, Article V of the VFA, to which Solgen Nachura presumably refers, says nothing of the sort. As we’ve argued previously in this space, the language of Section 6 does not specifically say that a member of the U.S. military who has been convicted of a criminal offense by a Philippine trial court shall be detained at the U.S. Embassy while he pursues all available avenues of appeal.

Nor is it possible to infer such a meaning from the text of Section 6. That Section uses the phrase "completion of all judicial proceedings" in the context of the one-year period within which such proceedings must be completed. And Section 6 is specific in stating that the "one-year period will not include the time necessary for appeal."

To reiterate, the purpose of Section 6 is simply to assure the presence of the accused U.S. military personnel while the trial of their case is ongoing. The responsibility of producing the accused is placed squarely upon the U.S.

During the entire time the trial was in progress, the Philippines didn’t howl when all the accused in the Subic rape case were held in custody at the U.S. Embassy. That was the prerogative of the U.S. under the VFA. Their obligation was to produce the accused whenever their presence was needed during the trial. This duty the U.S. Embassy discharged, it is fair to say, with admirable punctiliousness.

But after Smith’s conviction, the issue before our appellate courts is whether it is another Section of Article V which applies, namely Section 10 which refers to an agreement between the two countries in regard to the facility where detention of confinement by Philippine authorities shall be accomplished.

Not even Section 10, though, is specific about the point in time, or the stage in the legal proceedings, when such detention or confinement in a Philippine facility must commence. That being the case, a reasonable inference has to be that the matter has been left to the applicable domestic law, in this case Philippine law.

In our jurisdiction, a person convicted of a capital crime by a trial court is immediately committed to the national penitentiary in Muntinlupa pending the outcome of his appeal of his conviction. One reason for this is the rule that the presumption of innocence no longer applies after trial and conviction of an accused.

Smith’s temporary confinement at the Makati city jail was ordered by Judge Pozon in order to allow both countries an opportunity to execute an agreement on the detention and confinement of the accused, pursuant to Section 10, Article V of the VFA.

Curiously, Solicitor General Nachura also argues, despite his insistence that Section 6 disposes of the custody issue, that there has in fact been an agreement executed after the promulgation of the Pozon decision which "returns" Smith to "U.S. military custody at the U.S, Embassy in Manila."

This is the third such agreement between the two countries. Although virtually identical in text, the first agreement was signed by the Chief State Prosecutor and the U.S. Ambassador to the Philippines. The second was signed by the Philippine Justice Secretary and the U.S. Ambassador. Both agreements were thrown out by Judge Pozon since they were not signed on behalf of the Philippines by statutorily designated officials.

The disclosure of a third agreement, executed by the Philippine Department of Foreign Affairs Secretary and the U.S. Ambassador to the Philippines, was clearly a belated corrective measure, calculated to show that the agreement was executed by the "appropriate authorities" in accordance with Section 10, Article V of the VFA.

However, Judge Pozon had cited another ground for the inefficacy of the first two agreements. He ruled that, in accordance with the said Sec. 10, the "facility" named in such an agreement had to be a Philippine facility, certainly not the U.S. Embassy over which the Philippines has no control since it is technically part of U.S. territory.

Whatever diplomatic objectives either or both governments have in stating their positions on the custody issue, the language of the VFA has to be observed. Philippine officials should cease pontificating that this country must comply with its treaty obligations. Indubitably, our country has acted consistently with the VFA.

The dispute over the custody of Lance Cpl. Smith was not caused by violations of the VFA by this country, but because of ambiguities that exist in the language. These ambiguities have made it possible for the U.S. to claim custody of Lance Cpl. Smith. But by disagreeing with that interpretation, the Philippines does not thereby fail to comply with its treaty obligations. .

Have we forgotten that the genesis of this case was the rape of a Filipino woman? One does not have to overstate the gravity of that case to ask government: Whose side are you on, anyway? It can’t be the law because until the Supreme Court speaks on the matter, there is none.