It all depends, I suppose, on what the Philippines and the US understand by "review." If the idea is to revisit the entire VFA, including the necessity for such an agreement, I guess each side has its own reasons for not wanting to begin that process anytime soon, regardless of the outcome of the Smith appeal before our appellate courts.
But if the only purpose of a "consultation" between the parties to the VFA is to clarify certain troublesome or ambiguous provisions of the agreement, to avoid the kind of diplomatic wrangling that occurred in the Smith case, then it is difficult to comprehend why either would hesitate to start that process soon.
Such a consultation could proceed independently of the Smith case, and serve precisely to avoid the legal and procedural brouhaha that attended the Smith custody dispute after his conviction by the Makati regional trial court.
Moreover, a clarification of the disputed Sections 6 and 10, Article V, of the VFA on criminal jurisdiction seems advisable, if only to clarify once and for all each party’s obligations in the event of a conviction of a US soldier for an offense which is undeniably cognizable by a Philippine court.
Unless, of course, the position of both governments is that any "ambiguity" vis a vis those provisions has been removed by the subsequent agreement between Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney on December 22, 2006. Last time, we asked you to remember the wording of the agreement on the custody of Smith at the US Embassy while his appeals are pending before our court system.
It will be recalled that the Court of Appeals decision of last January 2nd considered the aforesaid agreement to be a "supervening event." Further, if our government, the US Embassy and Smith all saw the language of the VFA as "clear," then, the Court conceded, "let it (our government) do as it sees fit and deal with (the Romulo-Kenney agreement) as its sound judgment permits."
So, what did the Court of Appeals say about the rulings of Makati trial judge Benjamin Pozon on the proper custody of Smith after his conviction and pending the outcome of his appeal? Did the Court of Appeals agree with Pozon that Section 6, Article V, of the VFA no longer applied after trial and rendition of judgment and that, therefore, Philippine law governed the matter of his detention pending appeal?
The US Embassy and Smith’s lawyers had argued that the Embassy in Manila could hold on to Smith until the exhaustion of all remedies available to him for the appeal of his conviction. Their authority was Section 6, Article V, which, in their view, entitled the US to custody "until completion of all judicial proceedings." That meant, they stressed, until all appeals had been completed.
Briefly, our Court of Appeals agreed with Judge Pozon that Section 6, Art. V, applies only during the one-year period when judicial proceedings, under the VFA, MUST be completed. On the matter of custody, the CA reiterated a familiar principle in criminal law that jurisdiction necessarily includes custody. Section 6, Art. V of the VFA was an exception to that basic principle. Thus, custody could be turned over to the US, which then assumed the obligation to present the accused at the trial.
Because the Philippines undeniably had jurisdiction over the crime of rape with which Smith was charged, our country necessarily had the right to custody. However, under the said Section 6, the Philippines agreed to surrender custody IF THE US SO REQUESTED. But the CA found that there had been "no request for custody, either formal or informal, that originated from US authorities."
The failure of the US to request custody of Smith, the Court said, "may have been due to the fact that they had actual custody of (him) anyway." Also, the Court blamed this "singular omission" on the "lack of diligence" of the appropriate Philippine authorities to effectively enforce the provisions of the VFA.
The Court concluded: "The term all judicial proceedings as intended, used and understood in the VFA may carry only one meaning…that is, that all judicial proceedings refer to all trial court proceedings…Thus, in paragraph 6, custody by US, authorities over the offender who is under the jurisdiction of Philippine authorities ends with conviction, the completion of all judicial proceedings…
"The petitioner may not remain further under custody by US authorities after completion of all trial proceedings because there is no longer any further co-relative obligation to hold and produce him for any other investigative or (trial court) judicial proceedings."
Were the provisions of Section 6, nay, all the inter-related Sections of Article V on criminal jurisdiction, clear and harmonious? Well, the Court of Appeals itself answered that, as follows: "(T)he provisions of Article V of the VFA…are not all that crystal clear contrary to the opinions of many who may not have even had the opportunity to get hold of a copy of the VFA. It is after all the judge’s duty to say what the law is."
Some will seek solace in the fact that the last word on the subject will be the Supreme Court’s. Whether the latter court will agree with the Executive that the VFA is clear on the custody issue, or whether it will sustain the Court of Appeals’ ruling that it is not all that crystal clear, remains to be seen.
At the end of the day, is a review of the VFA, to achieve some clarity in Article V on criminal jurisdiction warranted in the circumstances? Is there basis for the concern of the US government that the process may "escalate" into a thoroughgoing review not only of specific provisions but of the very concept of a Visiting Forces Agreement (sometimes called a Status of Forces Agreement)?
We consider these and other questions in our next piece.
(To be continued)