SC asked to reverse ruling on VFA

By Benjamin B. Pulta

02/27/2009

Lawyers representing the Filipina victim of convicted rapist Lance Cpl. Daniel Smith, along with various cause-oriented groups, have urged the Supreme Court to overturn its earlier decision which upheld the constitutionality of the Visiting Forces Agreement (VFA) and reconsider its ruling on the American’s case.

In a 45-page joint motion, private prosecution lawyers Evalyn Ursua and Pacifico Agabin, who represent “Nicole,” said the high court should consider modifying its earlier decision and instead declare the VFA “unconstitutional.”

They also asked the high court to direct the “immediate transfer of Daniel Smith to the custody of Philippine authorities.”

The petitioners argued that “the VFA violates the equal protection clause of the Constitution and undermines the independence of the judiciary.”

The lawyers also denied claims made by the Executive Department that the transfer of Smith to detention inside the US Embassy had been implemented with court approval and said Philippine authorities acted with US Embassy officials to transfer Smith without the Court of Appeals (CA)’s approval.

“When the Court of Appeals did not act on the DFA’s (Department of Foreign Affairs) motion and simply ‘noted’ the agreements submitted, our executive officials and the US Embassy proceeded to take matters into their hands. At about 11 o’ clock in the evening of Dec. 29, 2006 Smith was released from the Makati City Jail by

Philippine officials and turned over to US authorities,” the petitioners, that also included former Senators Jovito Salonga and Wigberto Tañada, lawyers Harry Roque and Neri Colmenares and militant groups Bagong Alyansang Makabayan (Bayan) and Gabriela, said in their motion.

The lawyers argued that “like any other agreement, the VFA must conform to the dicates of the Constitution.”

“While Filipinos and other foreign nationals, accused or convicted of a crime cannot negotiate whether they will be detained in a Philippine or foreign detention facility or even choose their place of detention in any Philippine prison facility, Smith has the privilege to choose the detention facility. While many Filipinos are not allowed to temporarily leave prison for a medical check up without a court approval, Smith can have his choice of a place for confinement without court approval,” they noted.

State lawyers earlier sought a clarification from the SC in connection with the tribunal’s ruling on Smith’s detention.

In a nine-page motion for clarification, Solicitor General Agnes Devanadera sought clarification of the SC ruling declaring that government has the right to take custody of Smith under the VFA, noting that based on Paragraph 6, Article V of the VFA, “the custody over US personnel shall reside with US authorities, if they so request, from the commission of the offense, during the trial and even on appeal until the judgment of conviction is final an executory.”

The Office of the Solicitor General (OSG) argued that since the judicial proceedings on the case of Smith has yet to be terminated, and had been remanded to the Court of Appeals, Paragraph 6 of the VFA should apply on Smith’s custody issue.

“It is therefore respectfully submitted that Article V, Paragraph 6 applies in L/Cpl. Smith’s case considering that judicial proceedings in his criminal case have not yet attained finality,” the OSG said.

The OSG added Paragraph 10 of the VFA, which states that the confinement by Philippine authorities of US personnel shall be carried out in facilities agreed upon by appropriate Phillipine and US authorities, complements Paragraph 6 as it applies after the court’s judgment attains finality

The government said even if the CA has resolved Smith’s appeal, it still cannot be considered final and executory until it is elevated to the SC for final abdjudication.

Devanadera insisted that the agreements between DFA Secretary Alberto Romulo and US Ambassador Kristie Kenney in Dec. 19 and 22, 2006 allowing the detention of Smith at the US Embassy pending resolution of his appeal from conviction for the crime of rape are in accord with the first sentence of Paragraph 6, since they provide for the continued exercise of custody by US authorities Smith pending his appeal.

The SC also declared null and void the Romulo-Kenney agreements as these violates Paragraph 10 of the VFA.

The US Marine was convicted by a lower court in mid-December 2006 for the rape of Nicole in November 2005 while joint Philippines-US military exercises were ending in Central Luzon.

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