Four Reasons Why Smith Should Be in RP custody



Manila --- THE UNDERSIGNED groups express their outrage over how the Department of Justice and the Department of Foreign Affairs have taken the cudgels for Lance Cpl. Daniel Smith who, we have learned, has been released to the custody of the US Embassy upon orders of President Gloria Macapagal-Arroyo.

These officials have forgotten that they represent the Filipino people and not an American serviceman.

Instead of deferring to the judiciary's interpretation of the Visiting Forces Agreement (VFA), they have thwarted the legal import of the original provisions of the VFA and substituted their own meaning to justify the transfer of Smith's custody to the United States.

This case is not only an issue of custody.



Four Reasons Why Smith Should Be in RP custody



Manila--- THE UNDERSIGNED groups express their outrage over how the Department of Justice and the Department of Foreign Affairs have taken the cudgels for Lance Cpl. Daniel Smith who, we have learned, has been released to the custody of the US Embassy upon orders of President Gloria Macapagal-Arroyo.

These officials have forgotten that they represent the Filipino people and not an American serviceman.

Instead of deferring to the judiciary's interpretation of the Visiting Forces Agreement (VFA), they have thwarted the legal import of the original provisions of the VFA and substituted their own meaning to justify the transfer of Smith's custody to the United States.

This case is not only an issue of custody.

How the government conducts itself before a supposed co-equal sovereign will ultimately impact on the exercise of our sovereignty and will show how far the government is willing to abide by the provisions of the Constitution in upholding the dignity of the Filipino people, in respecting our human rights, and in protecting the rights of women against violence.

When the Philippines ratified the VFA, many nationalists feared the return of military abuses. Women's groups were apprehensive since any heavily militarized area is a breeding ground for prostitution and acts of violence against women.

One critical aspect of the VFA is in the area of criminal jurisdiction. In construing these provisions, there should be no attempt at departing from their true import to unduly favor the United States.

4 reasons

Custody of Smith belongs to the Philippines for the following reasons:

1. It is very clear from Article V, Paragraph 6 of the VFA that the US obligation to make Smith available to Philippine authorities for any investigation or judicial proceedings ceases "(i)n the event Philippine judicial proceedings are not completed within one year." Accordingly, "the one-year period will not include the time necessary to appeal."

Logic and common sense dictate that the judicial proceedings contemplated in that paragraph refer only to the proceedings during the trial state.

A contrary interpretation would mean that the Philippines will lose the right to demand from the US the production of Smith once the judicial proceedings, which include the period to appeal, are not completed within one year.

Absurd situation

This would result in the absurd situation where Smith's custody resides with the US, but without the corresponding obligation on their part to make him available to Philippine authorities because judicial proceedings were not completed within one year.

The VFA cannot be interpreted in a way that would leave the People of the Philippines without recourse or remedy against a US personnel charged with an offense.

2. The same paragraph clearly distinguishes between the period of conduct of judicial proceedings, when the US has exercised custody over Smith, and the period of appeal, during which he shall be detained in "facilities agreed on by appropriate Philippine and United States authorities."

Clear distinction

Philippine law clearly distinguishes between the status of the liberty of an accused during the conduct of the judicial proceedings in the trial court and on appeal.

Pursuant to a Supreme Circular 4-92-A, judges are required to immediately issue orders of commitment after the conviction of national prisoners (those sentenced to three years and one day and above). This should be done once an appeal is filed.

However, in recognition of the VFA, Judge Benjamin Pozon ordered the commitment of Smith to the Makati City Jail pending the agreement on the appropriate facility for the latter between the Philippines and the US.

Article V, Sec. 10 speaks of "confinement or detention" in facilities agreed on by the two parties. The judge, however, correctly pointed out that the "facilities" under this paragraph should be those run by the Philippine authorities and not by the Americans, as the Philippines could not possibly exercise jurisdiction over such place.

Constitution is supreme

The judge correctly applied the appropriate provision considering that Smith has already been convicted.

The exercise of criminal jurisdiction should be construed strictly in favor of the Philippine government because of the nature of the VFA.

Allowing Smith to remain in US custody would constitute a violation of the principles of the Constitution insofar as there is an abdication of the right of the State to exercise sovereign power over Smith.

3. We should not forget that our Constitution is supreme law and not even treaty provisions can subvert its guarantees.

Smith is 'national prisoner'

Unless Smith merits differential treatment, he must be treated in the same way as other "national prisoners" and be committed in a Philippine facility ... where Philippine jurisdiction can be exercised at all times.

4. We should be equally mindful of our country's other treaty obligations.

Signed:

--Sen. Leticia R. Shahani,

-- Ateneo Human Rights Center, Women

-- Gender Institute, Cedaw Watch, Contributors