SC ORDERS TRANSFER OF U.S. MARINE RAPIST TO RP JAIL
PHOTO
AT LEFT - LANCE CORPORAL DANIEL SMITH.MANILA, FEBRUARY 12, 2009 (STAR) The Supreme Court (SC) ruled yesterday that a US Marine convicted of raping a Filipina must be transferred out of his detention facility in the US Embassy.
The SC decided that Lance Corporal Daniel Smith should be detained in a facility under the Philippine government’s control and that the US Embassy did not qualify as such a place.
Voting 9-4 with two justices inhibiting, the High Tribunal ruled that the agreements signed by Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney on Dec. 19 and 22, 2006, which allowed the detention of Smith under US military custody at the US Embassy, were “not in accordance with the Visiting Forces Agreement (VFA),” which covers procedures for crimes committed by US soldiers in the Philippines.
The 20-page decision penned by Associate Justice Adolfo Azcuna upheld the constitutionality of the VFA.
Smith was sentenced to 40 years in prison in 2006 for raping a Filipina after military exercises in Subic in Olongapo City in 2005.
He was initially detained at the Makati City Jail pending an appeal, but was later transferred to a facility inside the sprawling US Embassy compound in Manila.
Smith’s conviction prompted Washington to threaten to call off large-scale military exercises with Manila until he was turned over to the custody of the US Embassy.
Article 5, Section 10 of the VFA provides that confinement or detention of convicted US personnel should be done “by Philippine authorities.”
The SC ruled that an agreement between Philippine and American governments should be forged only on the issue of which detention facility in the country Smith should stay in.
The High Court ordered Romulo “to negotiate with the United States’ representatives for the appropriate agreement” on Smith’s return to Philippine custody.
“The confinement or detention of one United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities as provided in Art. V, Sec. 10 of the VFA,” explained the ruling.
But SC spokesman Jose Midas Marquez told reporters in an interview that the Court did not issue a deadline for the transfer of Smith to Philippine custody as it also ordered the convicted rapist to be kept in the US Embassy pending negotiations between Philippine and US authorities.
The Court also directed the Court of Appeals to resolve without delay other pending petitions related to the case, including the appeal of Smith on his rape conviction by a Makati City regional trial court.
The decision penned by Azcuna, who is retiring on Feb. 16, was affirmed by Senior Associate Justice Leonardo Quisumbing, and Associate Justices Consuelo Ynares Santiago, Renato Corona, Dante Tinga, Minita Chico-Nazario, Presbitero Velasco Jr., Teresita Leonardo-De Castro, and Arturo Brion.
Chief Justice Reynato Puno dissented and was joined by Associate Justices Antonio Carpio, Ma. Alicia Austria-Martinez and Conchita Carpio-Morales. Associate Justices Antonio Eduardo Nachura and Diosdado Peralta inhibited from the case.
In his dissenting opinion, Puno said VFA fell short of meeting the requirement set under the Constitution that the treaty should be recognized by both governments.
“The circumstances present in the case at bar and recent case law in the United States’ policy on treaty enforcement further expose the anomalous asymmetry in the legal treatment of the VFA by the United States as opposed to the Republic of the Philippines. This slur on our sovereignty cannot continue, especially if we are the ones perpetuating it,” the chief justice explained.
Puno and Carpio agreed that Smith should be transferred to the New Bilibid Prisons (NBP) in Muntinlupa pending final resolution of his appeal from conviction for the crime of rape.
The case at the SC centered on two main issues: “Whether the right to custody of accused Daniel Smith during the pendency of his appeal belongs to the Philippine government or the United States authorities and whether there was a contempt of court committed in the transfer of accused Daniel Smith from the custody of the court to that of the United States authorities pending appeal.”
“The issue here at the Supreme Court is interpretation of VFA. The main case involving the rape issue is with the Court of Appeals,” explained Marquez in an interview.
Former senator Jovito Salonga and other petitioners will appeal the SC ruling upholding the constitutionality of the Philippine-US VFA despite losing the case with a 9-4 vote.
“We will appeal,” UP Professor Harry Roque, counsel for Salonga said in a phone interview. “We are hoping we could convince the other justices to join the four dissenters.”
In a statement, Roque said the SC stand on the VFA is “a bittersweet decision for the Filipino people.” He said the High Court’s refusal to declare the VFA unconstitutional “undermined its own independence.”
The case was triggered by the transfer of Smith to the custody of the US Embassy. Salonga and leftist groups questioned the agreement executed between Kenney and Romulo waiving the right of custody of Smith to US authorities pending appeal of his case.
Meanwhile, Malacañang gave assurance yesterday it would immediately start what it sees as difficult negotiations with the US government on the transfer of Smith to Philippine jurisdiction even as officials expressed optimism that the custody issue would not strain relations between the two countries.
Executive Secretary Eduardo Ermita pointed out that the bigger issue was the SC decision upholding the constitutionality of the Visiting Forces Agreement (VFA), which was welcome to both the Philippine and US governments.
“We will go by the SC ruling,” Ermita told a news briefing, even as he admitted the US government cannot just be compelled to abide by the High Court’s decision. “We will bring that (custody issue) across to the US authorities and I’m sure the US authorities with their lawyers will have their own position.”
When asked about the US position that Smith can only be transferred to Philippine jurisdiction in case his conviction by the lower court on rape is upheld, he said that was the reason why the SC ruled that negotiations must be done by both sides on the matter and the convict remain in the custody of the US Embassy in the meantime.
Meanwhile, the US Embassy in Manila said yesterday the SC decision ordering the transfer of Smith to custody of Philippine authorities would be referred to their legal experts because of important legal issues and the RP-US VFA.
“The US Embassy has taken note of the Supreme Court decision regarding the Visiting Forces Agreement. As it concerns important legal issues, we have referred it to United States Government legal experts in Washington,” the embassy said in a statement.
The Department of Foreign Affairs (DFA) was mum on the High Court’s ruling and order for Secretary Romulo to negotiate the transfer of Smith from the US Embassy to the custody of Philippine authorities.
A statement of Romulo for the media in reaction to the SC decision was still being crafted as of press time.
Ambassador Kenney, who was in Zamboanga yesterday, welcomed the SC ruling, saying the VFA is the legal framework which supports the US military presence in working with the Armed Forces of the Philippines (AFP) in training and providing technical assistance in the war against terrorism.
“The high court decision is terrific news. I’m pleased that an agreement that both our countries have (for the past years) stays in place,” Kenney said, citing that coordinated work between the two forces would continue unhampered.
But Kenney declined to comment on the part of the SC decision concerning Smith’s transfer.
Meanwhile, the Department of the Interior and Local Government said it will just wait for the specific directive of the Supreme Court on where to detain Smith. - With Cecille Suerte Felipe, Pia Lee-Brago, Roel Pareño