Release of Smith:
Absolute Disregard for the Judiciary, the Supreme Court and the
Constitution
BY
THE COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL)
Posted by Bulatlat
The surreptitious release of Cpl. Daniel Smith, in the
middle of the night at that, to the custody of the United States, despite
pending litigation in Philippine courts, is not only a violation of the
Constitution, but also a complete disregard and disrespect for the
judicial branch including the Supreme Court. It is not only a contempt of
court, but treachery that signals the complete breakdown of the rule of
law.
President Gloria Arroyo has submitted the custody issue to
the jurisdiction of the judiciary by intervening in the Court of Appeals
and arguing against Judge Pozon’s order. Not only is the Executive
without the power to transfer a convict under the custody of the Regional
Trial Court, but it is also estopped from doing the same since it
submitted the issue to the judgment of the Court of Appeals, and
ultimately the Supreme Court. The unilateral action by the Executive is
courting a constitutional clash between two branches of government, should
the Supreme Court uphold RTC Judge Pozon and order the Executive to
confine Smith to the Makati City Jail or the New Bilibid Prisons. The
U.S. embassy is a foreign territory under international law, beyond the
reach of any Supreme Court order.
President Arroyo has again committed another culpable
violation of the Constitution. Under Sec. 17 and Sec. 5, of Art. VII, 1987
Constitution the President is required to defend the Constitution and
execute all laws faithfully.
Under Section 13 of the 1987 Constitution, anyone who
commits a capital offense in the Philippines cannot post bail nor be
released on recognizance, when the evidence of guilt is strong. Not only
were the evidence strong against Smith, but they were sufficient to find
him guilty beyond reasonable doubt. Allowing the accused to remain in U.S.
custody is releasing Smith on ‘recognizance’ to the U.S. government,
clearly not allowed under the Constitution. The Visiting Forces Agreement,
or any treaty for that matter, cannot trump the 1987 Constitution.
The U.S. will in fact be violating their obligations under
the VFA if they continue exercising absolute custody over the accused as
provided in Art. II (VFA):
Art. II It is the duty of the US personnel to respect the laws of the
Republic of the Philippines x x x The US Government shall take all
measures within its authority to ensure that this is done.
Wrong Appreciation of the VFA
The VFA is unconstitutional under Sec. 25, Art. XVIII of
the Constitution which provides that :
Sec. 25. x x x foreign military bases, troops or facilities shall not be
allowed in the Philippines EXCEPT UNDER A TREATY CONCURRED IN THE
SENATE and, x x x RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING PARTY.
The U.S. has not recognized the VFA as a treaty, and has
refused to have it ratified by the U.S. Senate until today. Since, the
VFA is not recognized as a treaty by the US, it cannot be the basis for
the entry of “foreign troops and facilities” into the Philippines. It is
the height of self-humiliation for Pres. Arroyo to insist on calling the
VFA a ‘treaty’ while the U.S. refuse to accord it the same level of
respect.
Additionally, transferring Smith to the custody of the
U.S. violates the VFA presuming the VFA is constitutional. The relevant
provision is not Paragraph 6, which discusses the trial stage, but the
later provision under Paragraph 10, which appropriately discusses the
custody of those convicted and are serving sentence, to wit:
Sec. 10—The confinement or detention by Philippine authorities of US
personnel shall be carried out in facilities agreed on by appropriate
Philippine and US authorities. United States personnel serving sentences
in the Philippines shall have the right to visits and material assistance.
Cpl. Daniel Smith has been convicted, and is now serving
sentence. If he loses his appeal in the Supreme Court, the time he spent
under detention is counted as part of his sentence under the Rules of
Court. Sec. 10 no longer provides for U.S. custody, but merely requires
that the U.S. has a say on which facility he will serve his sentence. The
facility contemplated under sec. 10 is any of the Philippine prisons, and
not a prison facility outside the Philippine jurisdiction. The U.S.
Embassy is not a detention facility and is a foreign territory outside the
jurisdiction of Philippine courts.
Unequal Relations under the U.S. Counterpart VFA
The U.S. also signed a counterpart VFA which regulates the
entry of Filipino soldiers in the U.S. The counterpart VFA is strictly
and unequally construed against the Philippines.
Under the U.S. VFA, the U.S. can immediately imprison any
Filipino soldier who commits a crime in U.S. territory, and may waive said
right only upon ‘request’ of the Philippine government, but unlike the
Philippine VFA, the ‘request’ may be denied. Article VIII, Sec. 2 of the
VFA Counterpart Agreement in the U.S. (VFA Part II) merely requires the
U.S. government to request U.S. ‘authorities’ detaining a Filipino to
release that Filipino to Philippine custody:
Sec. 2 (VFA II) x x x The (US)
Department of Defense will ask the appropriate authorities in the
United States having jurisdiction over an offense committed by Republic of
the Philippines personnel to waive in favor of the Republic of the
Philippines their right to exercise jurisdiction, except in cases
where the Department of State and the Department of Defense, after special
consideration, determine that United States interests require the exercise
of United States federal or state jurisdiction.
Since the U.S. maintains the right to refuse the
Philippine ‘request’ for custody, the Philippines should also do the same
under the terms of the counterpart agreement. By giving the U.S. the
absolute discretion on the custody of a convicted U.S. personnel,
immediately clashes with the Constitutional rights of the rape victim,
legal provisions on bail and the equal protection clause.
This is the first time when a U.S. serviceman is convicted
of rape and allowing the convict to escape punishment is not only unjust
on the victim but an insult to Philippine sovereignty. This disparity in
treatment is magnified by the fact that arrested Filipino “TNT’s” in the
U.S. are immediately detained and deported like cattle for not having a
visa, while the convicted Smith stay in comfortable rooms in his embassy.
The Visiting Forces Agreement is unconstitutional. It not
only violates the 1987 Constitution’s provisions on deployment of foreign
troops, nuclear free Philippines and provisions on sovereignty, among
others, but it also violates the Constitution’s provisions on criminal
offenses. By not asserting Philippine sovereignty and jurisdiction over
the convicted rapist and transferring his custody to a foreign power, in
violation of the Constitution, President Arroyo has added one more ground
for her impeachment and one more item in the list of crimes she has
committed against the Filipino people.
Reference: Atty.
Neri Javier Colmenares
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