Philippine CA junks Smith plea for TRO

Court: Granting convict’s motion would lead to ‘silly, absurd situation’

By Jomar Canlas, Reporter

Manila-- The Court of Appeals on Tuesday junked rape convict Lance Cpl. Daniel Smith’s plea to be returned to United States custody.

The court’s Special 16th Division denied Smith’s prayer for a temporary restraining order on Makati Regional Trial Court Judge Benjamin Pozon’s decision to keep him at the Makati City Jail, noting that his petition “precisely involves a determination of the regularity of the act of respondent judge…

“We do not share with petitioner’s view and that a grave and irreparable injury would befall him pending determination of this petition,” the court ruled. “The long and short of it is that a full-blown trial has been held with all the rights of the accused accorded to him.”

It pointed out that Smith was found guilty and convicted for the November 2005 rape of 23-year-old Nicole.

Associate Justice Apolinario Bruselas Jr. authored the four-page resolution.

‘Absurd’

A TRO, stopping his confinement at the Makati City Jail, “would in effect be reversing the confinement order and finding irregularity, even before we would have had the opportunity to determine whether or not the respondent judge indeed gravely abused his discretion,” the appellate court stressed.

“In a manner of speaking, it would amount to putting the cart before the horse, an absurd and silly situation,” it added.

The court said it is not closing the doors with the petition of Smith. A preliminary injunction is still possible once the accused has completed the submission of the pleadings required by the court.

The appellate court ordered the accused to serve lawyer Evalyn Ursua, private counsel to Nicole, a copy of Smith’s petition with proof of service as required by the Rules of Court.

The court said this order wound ensure justice and fair play since the Department of Justice has favored Smith’s petition.

The Court gave both Nicole’s camp and the Office of the Solicitor General 10 days to file their comments, according Smith five days to reply upon receipt of these comments.

VFA provisions

Smith’s petition asked the CA for a TRO enjoining Pozon from implementing his order. The petition accused Pozon of committing grave abuse of discretion in not allowing the convict’s appeal to be returned to US Embassy custody.

Smith’s lawyers, the US government and the Philippine government contend that Article 5, Paragraph 6 of the Visiting Forces Agreement (VFA) mandates the remanding the convict to US custody pending “judicial proceedings.”

The phrase, they said, includes the appeal process.

Pozon allegedly committed grave abuse of discretion in interpreting that the applicable law is Article 5, paragraph 10 of the VFA, which should apply “after the promulgation of conviction against accused Smith.”

On Monday Nicole, along with interveners former Sens. Jovito Salonga and Wigberto Tanada, asked the Court of Appelas to pass on the custody case to the Supreme Court. Nicole said she had filed with the Court a petition last June questioning the custody of the US authorities over troops involved in criminal cases.

Senators Salonga and Tanada both voted against the extension of the US miitary bases in 1992. Both are staunch nationalist and anti-imperialist politician in the Philippines.

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