Cpl. Daniel Smith to be Kept in Philippine Facility but Visiting Forces Agreement Upheld

According to the Supreme Court, convicted rapist U.S. Army Marine Cpl. Daniel Smith should be jailed in a Philippine facility “agreed on by appropriate Philippines and United States authorities” after his conviction for raping a Filipina was sustained.

Recall that in late 2006 and early 2007, Smith was the subject of a diplomatic tug-of-war between Philippine judicial authorities and the U.S. over his detention in a local jail. Bowing to American pressure, he was subsequently handed over to embassy officials by the Arroyo government. He was detained in the U.S. embassy compound while his appeals were pending.

But the decision in the consolidated cases of “Suzette Nicolas y Sombilon (a.ka. “Nicole”) vs. Secretary of Foreign Affairs Alberto Romulo et. al. (G.R. No. 175888), Jovito Salonga et. al. vs. L/Cpl. Daniel Smith et. al. (G.R. No. 176051) and BAYAN, GABRIELA et. al. vs. Gloria Macapagal-Arroyo et. al. (G.R. No. 176222)” has some parties in a snit, particlularly those who used the rape case as a vehicle for questioning the constitutionality of the Visiting Forces Agreement. Sorry guys, but the S.C., voting 9-4, says that the VFA is constitutional. In the words of the Court: “The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United States, entered into on February 10, 1998,is UPHELD as constitutional but the Romulo-Kenney Agreements of Dec. 19 and 22, 2006, are declared not in accordance with the VFA. ” The Romulo-Kenney agreements pertain to the transfer of Smith to the custody of U.S. authorities.

The decision held that the VFA is “self-executing” and need not be ratified by the U.S. Senate to be binding.

The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract from its status as a binding international agreement or treaty recognized by the said State. For this is a matter of internal United States law.

The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by its terms and provisions.

The foregoing must especially rankle, as does the declaration that unequal (read: preferential) treatment of foreign nationals is lawful.

The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused.

The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon.

Moreover, there is a lot of room for diplomatic wrangling, as the VFA provision on custody after conviction is worded thus:

Article V, Criminal Jurisdiction

x x x

Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.

Indeed, the Supreme Court took pains to state: “… respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court.

There’s the rub. The decision is not yet final and executory, as Smith will likely file a Motion for Reconsideration. Thereafter, negotiations will have to be held and this could take forever, with the U.S. authorities stonewalling. Note that the decision prescribes no timetable. In the meantime, Smith stays in the U.S. embassy and will be credited with time served under detention.

In the event that Smith is indeed tranferred to a Philippine prison, it must be “in facilities agreed on by appropriate Philippines and United States authorities“. This practically guarantees that Smith will get favored treatment, at the very least a nice cottage with all the amenities, including hot showers and cable t.v. , like that enjoyed by rich Filipino jailbirds like Claudio Teehankee, Jr. No “Midnight Express” experience for this All-American boy. And, after a decent interval, and passions have cooled, he can be deported as an undesirable alien in exchange for still undetermined diplomatic concessions.

Chief Justice Reynato Puno’s dissenting opinion decries the “asymmetry in the legal treatment” of the treaty by the U.S. While the Philippines has scrupulously tried to adhere to the letter and spirit of the VFA, the Americans have been considerably more cavalier.

This may be one of those decisions which aims to satisfy everyone and ends up pleasing no one.

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