ON SMITH CUSTODY RULING

US embassy: Makati judge ‘misunderstands’ VFA

DOJ Gonzalez says Pozon out to ‘please Left’

Manila, Philippines ---News sources today reported that the ruling of Makati trial court Judge Benjamin Pozon for convicted US Marine Daniel Smith to remain at the Makati City Jail “reflects a misunderstanding of Philippine obligations under the terms of the Visiting Forces Agreement (VFA) during judicial proceedings,” the United States embassy said Wednesday.

The embassy statement, issued a few hours after Pozon’s ruling, reiterated the American position that Smith, being a member of the US military, should remain in US custody pending final judicial proceedings -- including the appeal of the 40-year sentence on Smith for raping a Filipina last year -- of the case.

“Smith is a member of the US military who was on a military mission in the Philippines. He is not a private citizen, and therefore the handling of his case is subject to the terms of the VFA,” the statement said.

In Malacañang Palace, Justice Secretary Raul Gonzalez also assailed Pozon’s decision and said the government, through the Department of Foreign Affairs (DFA) "will intervene to uphold [the Philippines’] treaty obligations" once Smith’s counsel file an appeal or petition before the Court of Appeals or Supreme Court questioning Pozon’s ruling.

Foreign Affairs spokesman Eduardo Malaya confirmed this saying said: “The department is respectful of the judge's decision, but together with the Department of Justice, we are exploring all appropriate legal remedies so that we could abide by our treaty obligations.”

At a news briefing in the Palace, Gonzalez accused Pozon of having an “agenda…to please the Left” and “get the kudos and hosannas of certain sectors,” adding that, "He just wants to prove that he is Judge Pozon; from an unknown entity now he's popular."

The US embassy stressed that “continued US-Philippines military cooperation relies upon adherence to the VFA, which provides a clear framework for the legal status of visiting US service members” and reiterated Article V, Paragraph 6 of the agreement, which says “custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.”

It also said the US government “welcomed” statements from the Justice and Foreign Affairs departments backing the American position on custody of Smith.

Gonzalez said he was “a little disturbed that a judge does not recognize that the treaty can affect the relationships between two countries," adding that Pozon had been reminded about the provisions of the VFA.

The justice secretary worried that keeping Smith at the Makati jail could strain Philippine-US ties as he pointed out that President George W. Bush had raised the case of Smith when new Philippine Ambassador to Washington William Gaa presented his credentials at the White House recently.

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