US soldier convicted of rape in Philippines still not in Philippine custody.

This is from the Inquirer(Philippines)
This has been a hot button issue in the Philippines at one time but had more or less dropped off the radar. Some groups especially left wing groups think that VFA(Visiting Forces Agreement) is unconstitutional. It allows the U.S. to keep custody of accused US soldiers until final appeals have been launched. A local court originally took Smith into custody but he was removed by U.S. authorities with the co-operation of jail officials and kept in the US embassy. It seems the proper processes were not used as the article describes the situation. Many worry that Smith may just be spirited off at some point and that the Philippines will be able to do little about it. It seems all that has happened so far is that he is no longer at the US embassy but somewhere else.


Inquirer Headlines / Nation
Where is Lance Cpl. Daniel Smith?


By Leila Salaverria, Jerome Aning
Philippine Daily Inquirer

Posted date: September 20, 2008


MANILA, Philippines—A lawyer questioned the whereabouts of American serviceman Lance Cpl. Daniel Smith, citing information from a US embassy official that the soldier had been taken out of the embassy and was staying somewhere in Quezon City.
During oral arguments at the Supreme Court on who should have custody of Smith, lawyer Harry Roque said the Office of the Solicitor General should verify the place of detention of the American Marine.

The session lasted almost six hours on Friday, starting at 1:30 p.m. with Chief Justice Reynato Puno presiding and ending at around 7:15 p.m.

Roque, who represents Jovito Salonga, said Smith’s earlier transfer to the US embassy was the basis for the Court of Appeals’ decision dismissing as moot the petition questioning the Makati Regional Trial Court’s order directing that Smith be detained at the Makati City Jail.

Thus, his present whereabouts should be verified.

Roque said he received information on Sept. 4 from a “logistics person,” a US soldier involved in implementing the Visiting Forces Agreement (VFA), that Smith was staying in Quezon City.

“I don’t take it as gospel truth but the Office of the Solicitor General should certify the information if he has been transferred outside the US embassy … The OSG should have at least informed the court of the transfer. It is for this reason that I ask clarification from the state,” he said.

He added that this information seems to have been confirmed by US Ambassador to the Philippines Kristie Kenney when she was quoted in a report saying that Smith was detained in a compound.

Last seen Sept. 12

In an ambush interview before the start of the oral arguments, Solicitor General Agnes Devanadera said executive officials last saw Smith at the US embassy on Sept. 12.

She also said that based on reports, Smith was never taken out of the embassy except to go to the hospital.

After Smith was convicted on Dec. 4, 2006, of raping a Filipino identified only as “Nicole,” the Makati RTC ordered him detained at the Makati City Jail. The soldier was taken to the detention center a few hours later. But on Dec. 30 he was brought to the US embassy in the dead of night.

Discrimination

Law dean Pacifico Agabin, who represents the Bagong Alyansang Makabayan, also argued before the high court that detaining Smith at the US embassy was a “reverse form of discrimination, against our own countrymen in our own country.”

Chief Justice Puno later made the same observation: “[We seem to have made the decision] that the best way of protecting our people, our sovereignty and the integrity of our legal system is to be surrendering custody of the accused. Something must be wrong here.”

In response to a question of Justice Ruben Reyes on whether this was discriminatory even if the US and Philippine governments had agreed to this, Agabin answered in the affirmative.

“It won’t affect the fact that a Filipino defendant has been discriminated against … It is unconstitutional because it violates the equal protection clause,” he said.

Roque also told the court that there was violation of the equal protection clause of the Constitution when Smith was transferred to the embassy and kept in an air-conditioned room with a view of Manila bay and other amenities, while inmates in Philippine jails struggled in inhumane conditions.

Human rights violation?

Justice Leonardo Quisumbing asked if there would be a violation of human rights if Smith had been kept at the Makati City Jail and abused by the inmates there.

When Roque agreed, Quisumbing then asked if the executive officials were in a “damned if we do, damned if we don’t position.”

Roque denied this, adding that he plans to ask the government to improve jail conditions in the country.

Agabin also said that with Smith detained at the US embassy, it means that the Philippines has lost custody of him and the court has lost jurisdiction over him. He noted that the US embassy could fly Smith out of the country without the Philippine officials’ knowledge.

Courts helpless?

Reyes then asked if this meant that the courts were helpless to do anything.

Agabin replied that this could be the case.

“The Philippine trial courts will be helpless. But the DFA (Department of Foreign Affairs) can initiate extradition proceedings, but it can be resisted,” he said.

Roque also said that although the VFA provides that the United States should surrender its servicemen accused of crimes, there is no guarantee that it will.

He added that if the US would refuse to surrender its soldier, then there was not much the courts could do since summons could not be served at the US embassy or at the residences of ambassadors.

Roque also said the executive officials who authorized the transfer of Smith should be cited for contempt because when the Marine was taken from the city jail, Smith had a pending petition at the appellate court questioning the order committing him to the city jail. The appellate court subsequently dismissed Smith’s petition as moot.

Agabin also argued before the high court that it should revisit its October 2000 decision upholding the constitutionality of the VFA in light of recent developments, including the dispute on Smith’s custody and the fact that the American troops’ visit is taking on a permanent nature.

He also said that although the Philippine Senate ratified the VFA as a treaty, the US Senate did not.

Justice Minita Chico Nazario pointed out that the VFA was approved by the President, ratified by the Senate and upheld by the Supreme Court. And since the agreement provides that the two countries can agree on the place of detention, she asked if the executive officials were just implementing the VFA when Smith was transferred.

Rape is a capital offense

Agabin replied in the affirmative, but added that even if the custody of Smith at the US embassy was valid under the VFA, there was still grave abuse of discretion on the part of the country’s executive officials.

A Filipino was raped, he said, and rape was a capital offense. In other countries where the US had a VFA, it would surrender custody of soldiers accused of non-service related crimes to the host countries.

Justice Teresita Leonardo de Castro also asked whether the parties were questioning the agreement on the custody of Smith because they consider the VFA unconstitutional.

VFA compliance

Roque replied in the affirmative. He also pointed out that there was no compliance with the Constitution when the Philippine Senate ratified the VFA because the US Senate did not ratify the same agreement.

But Justice Antonio Carpio said the parties questioning the VFA should first prove that it was unconstitutional before they could attack the constitutionality of placing Smith under the US embassy’s custody.

Carpio noted that the issue was whether or not the VFA could be considered a treaty with the lack of the US Senate’s ratification.

“It now boils down to whether the VFA is a treaty as far as the Constitution is concerned. Unless you are asking the court to reverse its decision that the VFA is constitutional, you cannot assail the custody,” he said.

Identity revealed

In an ambush interview, Roque revealed more details about the US soldier who told him about Smith’s transfer to Quezon City.

Roque identified the soldier as Craig Marcelin, whom he met during a wine-tasting event at the Hyatt Hotel in Manila.

Roque told reporters that the soldier, a logistics officer, claimed to know Smith personally because they used to serve together in the military.

Fifth glass of wine

The soldier was also on his fifth glass of wine when he made the revelation and appeared unaware of Roque’s job, he added.

The lawyer also pointed out that there was no categorical denial from the US government.

Chief Justice Puno terminated the oral arguments at around 7:15 p.m. instructing the respondents and petitioners to submit within 30 days their respective memoranda to reiterate their stands or rebut issues that were raised by either side.

The OSG was also asked to submit documents required by the high court, such as the minutes of the meeting of the panels that negotiated the VFA, particularly those concerned on jurisdiction and custody of foreign military personnel accused of crime in the Philippines.

In her presentation to the court, Nicole’s lawyer Evalyn Ursua accused the Philippine government of committing a “complete deviation” of the provisions of the VFA provisions.

‘We never had custody’

She complained that the government “never had custody” of Smith from the start of the trial until conviction.

There never was a request from the United States to take custody of Smith, she added.

Worse, Ursua said the government, who started out insisting on taking the custody of Smith, later “switched sides” and supported the US embassy’s contention that it should have custody of Smith.

Ursua insisted that the Makati RTC had jurisdiction of the accused from the start of the trial until the decision is rendered, in accordance with the Philippines’ rules of criminal procedures as promulgated by the Supreme Court.





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