[PHOTO AT LEFT - V grab from ABS-CBN News Channel shows convicted US Marine Lance Corporal Daniel Smith (center) talking to Interior Undersecretary Marius Corpus while US security officer Jake Jacob signs a document in the serviceman’s detention room at the US Embassy in Manila last Jan. 2.]

MANILA, JANUARY 6, 2007 (STAR) By Paolo Romero - Malacañang is bent on reviewing the RP-US Visiting Forces Agreement (VFA) to amend and clarify some of its ambiguous provisions to prevent future controversies, Press Secretary Ignacio Bunye said yesterday.

The US Embassy, however, said a review of the VFA at this time is "premature" since the case of Lance Corporal Daniel Smith, who was convicted by a local court of raping a Filipina, is still ongoing.

Executive Secretary Eduardo Ermita, for his part, said Smith’s case served as an "eye-opener" for both sides and prompted moves to review provisions of the agreement, signed in 1999.

The Palace also called on the nation to move on after the Court of Appeals (CA) settled the custody case over the US Marine, even as officials said relations between the Philippines and the US emerged stronger after both sides resolved the controversy amicably.

"Both the US and the Philippine governments have learned good lessons from this case and we believe that the friendship between our two countries has grown stronger as we hurdled the issues in the spirit of mutuality," Bunye said.

"It is now time to move on as we let the wheel of justice take its course," he said, referring to the appeal before the CA of Smith’s conviction for raping "Nicole," a 23-year-old Filipina, in November 2005.

Bunye said the government would also firm up security arrangements with the US for closer coordination on mutual concerns, including the fight against terrorism, as well as to prevent possible irritants between the two countries arising from joint activities such as the annual Balikatan military exercises.

"The government takes note of and appreciates the fact that the scheduled Balikatan exercise is now under more stringent rules for visiting personnel," he said, referring to the limited rest and recreation activities for the US troops participating in the war games.

He said the executive branch is willing to work with Congress, if necessary, on working on the amendments to the VFA.

Press attaché Matthew Lussenhop, quoting US Ambassador Kristie Kenney, said, "it’s premature to talk about a review and renegotiation of the VFA while there’s a case."

Prior to Smith’s transfer to the US embassy, Kenney said she was not in favor of reviewing the VFA for possible amendments.

"At this point, that would be premature because we’re not even fully complying with the agreement on the Philippine side so it’s very premature to say that," Kenney said. "I think we need to solve this particular issue first because right now we’re having a little difficulty with complying with the VFA, so it’d be premature to talk about what will come next."

She stressed that the VFA works very well since Smith’s case was heard in a Philippine court.

Kenney said following the provisions of the VFA, including turning Smith over to US custody, is important for the Philippines’ credibility.

A senior Filipino diplomat, who asked not to be named, said the US government really intended the VFA to be vague and open to interpretation.

The agreement was signed by Manila and Washington almost a decade ago.

"At the time of negotiations, the Philippine side (pushed) for a well-defined agreement, but they wanted it to be like that. It was a take it or leave it situation and we were really pressed to sign the agreement," the diplomat said.

Relations between the US and the Philippines were nearly strained after the legal battle over the custody of Smith dragged on, with Makati City Regional Trial Court Judge Benjamin Pozon insisting that the convict be detained at the city jail pending the final decision on his case.

The government and the US, however, maintained that under the VFA, US authorities have custody of their military personnel "until completion of judicial proceedings," and elevated the matter to the CA.

On Dec. 29, invoking a legal opinion from the Department of Justice that cited an agreement on custodial rights signed by Foreign Affairs Secretary Alberto Romulo and US Ambassador to the Philippines Kristie Kenney, Interior Secretary Ronaldo Puno ordered the Makati City Jail to turn over Smith to the US embassy.

The CA on Wednesday upheld the transfer of Smith.

Ermita earlier disclosed efforts to review provisions in the VFA governing the conduct of visiting US and Philippine troops in either country to remove any ambiguity that may lead to differing interpretations and controversies like the legal battle over the custody of Smith.

Ermita said Smith’s case served as an "eye-opener" for both sides and prompted moves to review provisions of the VFA, particularly defining which cases could be considered extraordinary.

Under the VFA, if a case is considered extraordinary, the Philippine government can invoke custody of the US military personnel involved.

Smith’s case was not considered extraordinary, which prompted the executive branch to allow the US embassy to have custody of the convicted rapist.

Ermita said a clearer definition for the term "extraordinary" could help prevent controversies in the future.

Smith’s transfer illegal?

Nicole, through her lawyer Evalyn Ursua, will ask the Supreme Court (SC) today to declare illegal the Dec. 29 transfer of US Marine Lance Corporal Daniel Smith to the US Embassy.

Ursua will also ask the High Court to declare as unconstitutional specific provisions of the VFA pertaining to the custody of the 21-year-old US Marine.

Ursua, in an interview with The STAR, said the petition seeking to return Smith to Philippine custody is backed by last Wednesday’s CA ruling. She said the ruling upheld a lower court’s decision to detain Smith at the Makati City jail until the Philippine and US governments agree on a Philippine facility where he will serve his sentence.

Ursua said that under international law, the US Embassy was in US territory.

"It is our view that the Court of Appeals stopped short of ordering the government to take custody of Smith and hold him in Philippine territory. We will ask the Supreme Court to issue that order in the pleading we will file tomorrow," she said.

She said the petition would amend the original petition filed on June 19, 2006, which seeks to declare Article 5, Paragraph 6 of the VFA as "violative of the Constitution."

"We are asking the SC to declare the VFA provisions on custody as unconstitutional and therefore cannot be used as a basis for an agreement on who gets custody of Smith and where he will serve his sentence," Ursua stressed.

According to Ursua, they are asking the SC to rule on the issue and declare the agreement between Romulo and Kenney as void.

Ursua said the respondents will include Romulo himself, Justice Secretary Raul Gonzalez, Interior Secretary Puno, and Presidential Legal Adviser Sergio Apostol, among others.

She said the CA’s decision, which rules that Pozon made the right decision in sending Smith to the Makati City jail, will support the petition and actually proves that the American soldier’s transfer to the US Embassy was illegal.

Ursua, meanwhile, complained of how different newspapers made diverse and strange interpretations of the CA ruling.

"It’s painful. The decision was misread or was not read at all. So wrong, very inaccurate," she said, expressing her disappointment.

At a news forum at the Serye Café in Quezon City, Ursua said Nicole feels President Arroyo robbed her of court victory when the Chief Executive allowed the transfer of Smith from the Makati jail to the US Embassy.

"Nicole is devastated. She feels the administration cheated her of the victory she won in the Makati Regional Trial Court," Ursua said.

She was referring to Pozon’s decision convicting Smith of raping her client and confining him at the Makati City jail.

"We went through a long and emotional trial to get Smith convicted and jailed. All that effort went to naught last Friday night," Ursua said.

That night, authorities transferred Smith to the US Embassy. Officials tried to make it appear that Mrs. Arroyo had nothing to do with the transfer. But the President later admitted she authorized it. She invoked national interest and pleaded for understanding for her decision.

On Wednesday, the Court of Appeals (CA), ruling on a petition of Smith questioning Pozon’s decision to confine him at the Makati jail, said the petition has become moot because the petitioner has already been moved to the embassy.

In the same ruling, the CA upheld Pozon’s decision to jail the convict in Makati pending an agreement between Philippine and US authorities on where he should be detained.

Subsequent to the Makati judge’s conviction of Smith, Romulo and Kenney signed an agreement that the US soldier should be confined at the US Embassy while appeal of his conviction is pending with the CA. A copy of the agreement was submitted to the appellate court.

Ursua said they would ask the Supreme Court today to clarify the appellate court’s ruling so that a final decision on who should have custody of Smith could be made.

"The CA ruled that Judge Pozon’s confinement of Smith at the Makati jail was correct, and that judicial proceedings on his case have ended with his conviction, meaning his appeal is not part of those proceedings. If this part of the ruling were followed, Smith should be returned to the Makati jail," she said.

She said under the VFA, while the judicial process is ongoing, the US has custody of a suspect.

But once such process is terminated and the suspect is convicted, the US has to turn him over to the Philippine government so he could serve his sentence, she added.

However, Ursua pointed out that in Wednesday’s CA ruling, the court, while upholding Pozon on the matter of confinement, noted at the same time the Romulo-Kenney agreement on Smith’s detention at the US Embassy.


Meanwhile, Puno feels vindicated by the CA’s decision regarding Smith’s transfer.

"Yes, of course," was Puno’s quick answer when asked if his

department felt vindicated in turning Smith over to the US Embassy. "Actually the CA decision recognized the importance and the necessary action that was taken."

Puno also said that they "have heard nothing but praises and accolades from the President on the performance of this department, in particular the performance of many individuals (who) figures in controversy after controversy, in problem after problem, showing our capacity to resolve these problems in a more constructive manner."

He believes the CA’s decision is "a confirmation of the fact that the Regional Trial Court decision which we implemented in the first place by bringing Smith to the Makati City jail (after his conviction) was a valid act at the time."

Puno also explained that when the Bureau of Jail Management and Penology took custody of Smith after he was convicted for raping Nicole, the US soldier filed an appeal with the court against the Department of the Interior and Local Government and the BJMP.

"We insisted (on taking him in custody) based on the court decision and brought Smith to the Makati City jail," he said.

Puno noted that "the CA turned down Smith’s motion and it affirmed our initial action in taking Smith to the Makati City jail. It (CA) also affirmed the executive decision in returning custody. As an implementing agency we followed and complied with the court decision. We feel that the decision recognizes that the actions taken are proper."

Aside from being vindicated, Puno said "the CA decision only proved that there was neither intent nor actual commission of contempt because we are implementing the court decision... no impediment anymore to the action we took of returning Smith to the US embassy."

Puno also assured that Smith will remain in the country until the Supreme Court resolves the case with finality. He also directed the inspection commission headed by Undersecretary Marius Corpus to go to the US Embassy everyday to check that he remains in a room measuring 12 by 10 feet, with guards inside and outside at all hours, and make him available for court processes.

On the other hand, Sen. Richard Gordon has called for an end to the furor over the issue of Smith’s custody and for people to let the case reach its conclusion in the Supreme Court.

Gordon, a member of the Legislative Oversight Committee on the VFA (LOVFA), emphasized that the terms of the agreement must be followed by both the United States and Philippine governments as signatories.

Gordon argued that the transfer of Smith to US custody was justified under the VFA though he felt that the manner in which it was done was "in bad taste."

"What I don’t like is that they did it during the night. But I think they did it to avoid an unruly incident," he said in Filipino.

He emphasized that the case should not be the cause of rifts in relations between the US and the Philippines.

Gordon pointed out that the US is too important an ally to antagonize over the issue, considering that it provides support to the Philippines’ armed forces, is one of the biggest trading partners, provides aid during disasters and most importantly, is host to over three million Filipino workers and expatriates.

"We have to have good relations. We must abide by our agreements. Anyone can say that sovereignty must be asserted but this is a friendly country. We have bigger fish to fry," Gordon said.

He also allayed fears that Smith would be spirited away by the US government while he is in their custody.

"Smith is not going anywhere and I am certain that once his conviction is sustained, they will turn him over (to Philippine custody). If they fail to do this then we can get angry," he said.

According to Gordon, the CA was right in saying that the courts should respect the decisions of the executive branch on diplomatic issues.

Regarding calls for a renegotiation of the VFA, Gordon said he was open to this but reiterated that when a new agreement is signed, all of its provisions must be followed. — With Pia Lee-Brago, Michael Punongbayan, Jess Diaz, Cecille Suerte Felipe, Marvin Sy and AP

Chief News Editor: Sol Jose Vanzi

All rights reserved