Issue of VFA Abrogation May Distract from the Public Contracts Bidding Mess

Senators Miriam and Joker are yapping about abrogating the RP-US Visiting Forces Agreement (VFA) in the face of the apparent US refusal to yield custody of American Marine Lance Cpl. Daniel Smith to Philippine authorities. What did we expect ? The Americans have a lot of room to maneuver and impede efforts to make Smith experience our inimitable penal system. Senator Arroyo pointed out the obvious, that we are “headed for a rough time with the US, which is not ready to give up Smith to Philippine prison authorities.” Hence, the flag-waving and chest-thumping of the two veteran lawmakers.

Realistically, there won’t be any great outcry to set aside the VFA except from the usual anti-U.S. groups. But this is a neat, gut-issue which may divert public attention from the alleged collusion of contractors and public officials in bidding for major road projects which was exposed by the World Bank and implicated First Dude Mike Arroyo. That the World Bank saw it fit to blacklist three Filipino construction firms and four Chinese companies that sought to undertake the National Roads Improvement and Management Program because of blatant corruption and bid-rigging is as much a blow to our national prestige as the U.S. refusal to surrender Cpl. Smith. And the stink reaches all the way to the top.

Bashing the World Bank for its supposed refusal to cooperate in the investigations being undertaken by Congress is another ploy which serves to distract from the pressing need to examine the actual, existing grounds for the WB report on collusion among contractors involving the DPWH and gross overpricing of public works. And why the Arroyo administration has done nothing except ignore it despite having known of the WB report since 2007.

By all means, let’s not let up on efforts to send Mr. Smith to jail. But we shouldn’t allow this new wrinkle to draw us away from other issues which are as serious, if not greater, a blemish to the country’s image.

6 thoughts on “Issue of VFA Abrogation May Distract from the Public Contracts Bidding Mess”

  1. Just finished reading the Azcuna ponencia. I must say, I am amazed at how media spin has completely misrepresented, by a selective emphasis, the body of important points being made in that Decision. The main one being a thorough rebuttal of the claim that VFA is unconstitutional. Even the much vaunted recent SCotUS Medellin ruling is dispatched by Azcuna in his discussion of Case-Zablocki and the VFA.

    But his “valedictory” motif itself, that the Romulo Kenney Agreements violate the VFA, hangs on a mighty thin thread — the construed meaning of the single phrase “by Philippine authorities.” Yet there they are as explicitly required by the VFA–duly signed undenied agreements between the two governments.

    But I’ve been meaning to ask someone this, because it seems to be the crux of the custody battle:

    The VFA states:
    “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.”

    Have all judicial proceedings been completed?

  2. Academic question for you:

    Has Daniel Smith “lost the presumption of innocence” after having been found guilty of rape beyond a reasonable doubt by the single judge of the RTC?

    By this I mean, has the “burden of proof” shifted from prosecution to defense in the appellate stage? Is it now the job of the Defense to prove his innocence beyond reasonable doubt? Or may the accused remain completely silent, not mount a defense, and merely demand that the Prosecution convince this time 3 out of 5 CA judges of his guilt beyond a reasonable doubt, as well as defend every step of the prosecution thus far?

  3. More academic questions:

    Is it technically correct to call Daniel Smith a rape “convict” now?

    Is he already formally serving his sentence? I know if he is convicted by the SCoRP that time in detention is credited to sentence served, but if he is exonerated on appeal, we do not call him an “ex-convict” do we?

    In other words, is it not true that a convict is one who has been to prison to serve his sentence, not merely be in detention while his case is being tried?

  4. Thanks for the incisive comments, Dean. No, strictly speaking, all legal proceedings have not been completed as there will still be Smith’s motion for reconsideration for the SC to resolve (assuming he files one, but why wouldn’t he ?). And of course his appeal of his conviction is still pending before the CA.

    While Smith still enjoys the “presumption of innocence” until the finality of the judgment, for all practical purposes his goose is cooked. The CA will not reverse the RTC in a case as controversial as this unless there has been a blatant miscarriage of justice.

    On appeal, the defense still has the burden of proving the innocence of the accused, although automatic review is mandated in capital offenses, or an offense punishable by reclusion perpetua or life imprisonment. Simple rape is punishable with reclusion perpetua as provided in Art. 335 of the Revised Penal Code. So, at least in theory, a convicted rapist can just keep silent and his guilt or innocence will still be subject to proper judicial proceedings, i.e. automatic review.

    He is technically a convicted criminal now, although not a “convict” in the sense that he has actually served time in a Philippine jail. He is under detention, and if he is exonerated he is not what we would consider an “ex-con”.

    And yes, it would be interesting to see how the lynch mob would react if, by some twist, Smith is allowed to serve his sentence in the U.S. The rape case is of course an obvious (and tired) metaphor for U.S.- Philippine relations (the rape of the motherland by the Ugly American and so forth). So many groups are invested politically, psychologically and even emotionally in seeing Smith’s nuts (figuratively) cut off that they’ll go crazy if he manages to evade serving time in Muntinlupa.

  5. There is a fascinating historical background to this case that I just discovered by looking up the reference in Azcuna’s Footnote 6. It is to a SCOTUS decision from 1982 involving the question of when an “executive agreement” is considered a treaty under US Law (this was before Case-Zablocki). Amazingly it involves a petition by US Citizens working at Subic Bay Naval Base against a policy established by executive agreement in 1968 hiring Filipino citizens preferentially at Subic! There was a US law prohibiting such discrimination against US Citizens at foreign military bases except “under treaty” [sic!]

    SCOTUS ruled in favor of the the Filipino employees ruling that the Congress meant to include such executive agreements under the term “treaty” in the anti discrimination law.

    Here is the synopsis of Weinberger v. Rossi at Justia:

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