The CA said Makati Judge Benjamin Pozon did not err in ordering Smith’s detention at the city jail following the 21-year-old Marine’s conviction for raping a Filipina, pending an agreement between the two governments on his place of incarceration. The CA said Pozon also did not err in refusing to order Smith’s transfer to US custody, deeming Justice Secretary Raul Gonzalez and Chief State Prosecutor Jovencito Zuño the inappropriate signatories to an agreement with US Ambassador Kristie Kenney.
But the appellate court also effectively upheld the second agreement with the US, this time with Foreign Secretary Alberto Romulo signing for the Philippines, returning Smith to US custody while his conviction is on appeal. This issue is likely to reach the Supreme Court; the CA said the VFA requires the detention of US servicemen convicted by Philippine courts in facilities controlled by Philippine authorities. The Americans have a different interpretation of the custody issue.
These disagreements will have to be threshed out later as both countries identify the provisions in the VFA that need clear definition. There are several gray areas in the VFA that have been highlighted by Smith’s case. One is custody, from the arrest of a suspect to final conviction. Another is when the one-year period for completing judicial proceedings is supposed to start and end. A third is who should sign for both countries in cases where there is mutual agreement on the interpretation of ambiguous VFA provisions.
Other gray areas may be revealed as this case unfolds. When the case is over and both governments still want to continue military cooperation under the VFA, they should be ready with a list of matters that need clarification in a revised agreement.