Wednesday, January 10, 2007

Release of Smith: Absolute Disregard for the Judiciary, the Supreme Court and the Constitution

Posted by Bulatlat

WHAT WE FILIPINOS SHOULD KNOW: (Note: Bold and/or underlined words are HTML links. Click on them to see the linked posting/article. Forwarding the postings to relatives and friends, especially in the homeland, is greatly appreciated.)

“Nations, whose NATIONALISM is destroyed, are subject to ruin.” - Colonel Muhammar Qaddafi, 1942-, Libyan Political and Military Leader

"Upang maitindig natin ang bantayog ng ating lipunan, kailangang radikal nating baguhin hindi lamang ang ating mga institusyon kundi maging ang ating pag-iisip at pamumuhay. Kailangan ang rebolusyon, hindi lamang sa panlabas, kundi lalo na sa panloob!" --Apolinario Mabini, La Revolucion Filipina (1898)

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(VFA) 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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