Philippine Supreme Court to examine constitutionality of Visiting Forces Agreement

This is a sensitive issue in that many Filipinos consider some of th VFA provisions to be against the Philippine constitution and to compromise their sovereignty. Daniel Smith was convicted of rape and is serving his sentence in the U.S. embassy rather than in a Philippine jail. The US claims the right to custody pending all legal appeals under the Visiting Forces Agreement.


High court takes up US soldier’s custody case
09/19/2008
A case filed by local civil rights groups questioning the validity of provisions in the military pact between Manila and Washington, particularly those in connection with Lance Cpl. Daniel Smith, the United States’ Marine serving his sentence for rape inside the American Embassy will be taken up by the Supreme Court (SC) today.
Oral arguments before the high court will take up the challenge on the constitutionality of the Visiting Forces Agreement (VFA),
which is the legal basis for Smith’s detention inside the embassy compound.
In a one-page advisory, the court en banc enjoined the parties in the two petitions to limit their arguments on two principal issues: “Whether the right to custody of accused Daniel Smith during the pendency of his appeal belongs to the Philippine government or the United States authorities and whether there was a contempt of court committed in the transfer of accused Daniel Smith from the custody of the court to that of the United States authorities pending appeal.”
Petitioners include former Senators Jovito Salonga, Wigberto Tañada and several lawyers.
A separate petition was filed by militant groups Bagong Alyansang Makabayan, Bayan Muna, Gabriela and the Public Interest Law Center.
Also named respondents in the two cases were President Arroyo, then acting Defense secretary; Executive Secretary Eduardo Ermita; Foreign Affairs Secretary Alberto Romulo; Justice Secretary Raul Gonzalez; and Interior Secretary Ronaldo Puno.
Salonga’s group argued that the agreements between Romulo and US Ambassador Kristie Kenney transferring the custody of Smith to US authorities are unconstitutional and that the VFA violates the exclusive power of the Supreme Court to promulgate rules and procedure in all courts under the 1987 Constitution.
The issue on the custody of an accused or convict is a matter of procedure, according to the petitioners, which under the Constitution is within the real of judicial power.
Salonga’s group specifically cited Section 6, Article 5 of the VFA as among the provisions that violate the rules on criminal procedures.
Under the provision “the 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.” “Said provision of the VFA…effectively violates and infringes on the power of the Philippine courts to acquire custody over the United States personnel,” Salonga’s group said.
The militant groups also asked the SC to nullify the agreements between officials of the DFA and the US Embassy allowing the latter to take custody of Smith.
Smith, a participant in the RP-US Balikatan military exercise, was found guilty of raping a Filipino woman on Nov. 1, 2005.
Makati Regional Trial Court Branch 139 Presiding Judge Benjamin Pozon sentenced him to reclusion perpetua or a minimum of 20 years to a maximum of 40 years’ imprisonment.
Smith has filed a petition before the Court of Appeals seeking the reversal of the lower court’s decision. The appellate court has yet to issue a decision on his appeal.
Benjamin B. Pulta