Monday, January 01, 2007

‘Constitutional crisis over Smith’

By Michael Punongbayan - The Philippine Star

A constitutional crisis could be the result of the transfer of convicted rapist Lance Corporal Daniel Smith from the custody of Philippine authorities to the US embassy, a group of lawyers warned yesterday.

The Counsels for the Defense of Liberties (Codal), an organization of lawyers, law professors and law students, also denounced yesterday the "surreptitious release" of Smith from the Makati City Jail (MCJ) on Dec. 29 as a blatant display of disrespect for the judicial system.

Codal spokesperson Neri Colmenares said that by ordering Smith’s transfer, the executive branch is courting a constitutional clash with the judiciary, should the Supreme Court uphold Makati City regional trial court (RTC) Judge Benjamin Pozon’s decision to detain Smith at the MCJ and bar the US and Philippine governments from transferring the 21-year-old US Marine to a facility not run by Philippine authorities.

Colmenares warned that the US embassy is foreign territory under international law and is beyond the reach of any Supreme Court order.

Sen. Juan Ponce Enrile, however, said the transfer of Smith from the MCJ was necessary to protect both Philippine and US national interests.

Enrile asserted that the transfer was allowed under the Visiting Forces Agreement (VFA) between the two countries.

"In a contract like this, it is an extraordinary system, another sovereign that is involved. It is not only the sovereignty of the Philippines that must be taken into account but you have to take into account the sovereignty of the other state which entered into the agreement," Enrile said in an interview over dzBB yesterday.

"We should not sacrifice our national interest. What we are talking about right now is only on the issue of custody," Enrile said. "The case will continue. The case is on and is being appealed. It will continue to be heard by the highest court of the land. Let us wait for the decision of the highest court of the land. Let the process take place."

Colmenares said President Arroyo, in allegedly authorizing the transfer, committed a culpable violation of the Constitution, noting that under Article VII Sections 17 and 5, 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," Colmenares said. "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 US custody is releasing Smith on recognizance to the US government — (an action) clearly not allowed under the Constitution. The VFA, or any treaty for that matter, cannot trump the 1987 Constitution," he added.

He said the US will, in fact, be violating their obligations under the VFA if they continue exercising absolute custody over the accused because Article II of the bilateral act clearly provides that "it is the duty of US personnel to respect the laws of the Republic of the Philippines" and that "the US Government shall take all measures within its authority to ensure that this is done."

The lawyer’s group also said the American government has not even recognized the VFA as a treaty and has refused to have it ratified by the US 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," Codal said in its statement. "It is the height of self-humiliation for President Arroyo to insist on calling the VFA a treaty while the US refuse to accord it the same level of respect."

"(Smith’s) transfer to the US embassy, in the middle of the night at that, to the custody of the US (authorities), despite pending litigation in Philippine courts, is not only a violation of the (1987) Constitution, but also a complete disregard (of) and disrespect for the judicial branch including the Supreme Court," Codal said in a statement.

"It is not only a contempt of court, but treachery that signals the complete breakdown of the rule of law," Codal said, noting that President Arroyo is "not only without power to transfer a convict under the custody of the Regional Trial Court but 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." Unequal relations
Colmenares said the VFA also screams of unequal relations under the US counterpart VFA because the latter "is strictly and unequally construed against the Philippines."

He explained that under the US VFA, the US can immediately imprison any Filipino soldier who commits a crime in US territory and may waive that right only upon request of the Philippine government, but unlike the Philippine VFA, the request may be denied.

Codal believes that since the US maintains the right to refuse the Philippine request for custody, the Philippines should also do the same under the terms of the counterpart agreement.

The group said giving the US the absolute discretion on the custody of a convicted US 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 US serviceman is convicted of rape and allowing the convict to escape punishment is not only unjust to the victim but an insult to Philippine sovereignty," Colmenares said.

"This disparity in treatment is magnified by the fact that arrested Filipinos in the US are immediately detained and deported like cattle for not having a visa, while the convicted Smith stays in comfortable rooms in his embassy," he said. Lost self-respect
Meanwhile, Quezon Rep. Lorenzo Tañada III said the pride and self-respect the Philippines earned from the removal of the US military bases in Clark Field, Pampanga and Subic Bay in Olongapo, Zambales have been obliterated by the acts of the Philippine government when it turned Smith over to US custody.

While there are ambiguities in the VFA which Pozon capitalized upon to ensure that the Philippines’ sovereign rights and Constitution are not trampled upon, Tañada said "the new and hastily forged Romulo-Kenney Agreement on Smith’s custody reflects an unthinkable sellout of our national interest.

"Shouldn’t our attitude in the ambiguities be on the side of our own nationals rather than a foreigner, especially when there is already a conviction of rape?" Tañada asked. "Isn’t it ironic that when this issue erupted last year, our government asked for custodial rights of the accused and now that he is already convicted, we are turning Smith over to the US?"

He added that whoever ordered the transfer of Smith’s custody should have clearly and strongly explained to the US that the Philippines has its own judicial processes that should be followed.

He said the merits of the case is for the courts to decide, not the executive branch.

"The US’s utter disregard of our judicial system and processes which we partly inherited from them is unconscionable. If the tables were turned, I don’t think the US or its judicial system would permit such a transfer," he said.

Tañada said the authorities acted like thieves in the night when the Philippine government officials in collusion with US government personnel turned over Smith from his Makati City jail cell late Friday night and transported him to the US embassy compound in Manila.

But Enrile said the issue of Smith’s transfer should not even be a cause of alarm. He added that the Philippines has more to lose than gain if it insists on detaining Smith in Philippine custody.

"Now, if we push that, we will have a democratic rupture with America," Enrile said. "Are we ready to confront America on this issue and is it worth our people’s interest to sacrifice the security and the national interest of the country, including maybe our economic interest, in this particular issue. That is a larger consideration to be taken into account."

Enrile has been vocal against the local court’s insistence on taking Smith into custody. The senator was also confident that the US government would respect provisions of the VFA even after Smith is already in their custody.

"Since the start, I asked them to let the Americans have custody of Smith. Anyway, this case will go on. As long as he remains in the country, the sovereign rights of the Philippines are respected," Enrile said. "But if we are going to insist on what we want, do we have the clout to do it?"

Hinting that the country still needs the joint RP-US Balikatan exercises, Enrile said the government needs to maintain the US as an ally to help the government in protecting the country’s vast coastline and territory. It will be recalled the Enrile served as defense minister under ousted former President Ferdinand Marcos and his successor President Corazon Aquino.

"Besides that, America is our ally. There is an unseen value that is given to them. If there is no America, we will have to spend half of our lives to provide with ourselves with our security umbrella to protect ourselves from our neighbors. We do not have a Navy, the Air Force. We have the ground forces to protect ourselves but that’s all," Enrile said.

Besides the nation’s security concerns, Enrile said the US government greatly helps in uplifting the country’s economy, which may be the more logical reason why the Philippines could not simply reject the US government’s request for Smith’s transfer.

"America is the source of a bigger portion of our economy. Much of our trade is trade with America, we cannot give it out just like that. The source of our economic development, one of the main sources is America," he added. — With Pia Lee Brago, Christina Mendez

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