Sunday, January 21, 2007 Charter experts appeal lower court’s ruling allowing Smith’s transfer to US Embassy
A GROUP of constitutionalists, among them former senators Jovito Salonga and Wigberto Tañada, have filed a suit before the Supreme Court (SC) questioning the constitutionality of the Philippines-US Visiting Forces Agreement (VFA) and the accord that paved the way for the transfer of convicted rapist Lance Corporal Daniel Smith to the custody of the US Embassy.
In a petition, Salonga and Tañada asked the high court to modify a ruling of the Court of Appeals (CA) that dismissed the petition for certiorari filed by Smith for being moot, on the premise that the December 22 agreement executed between Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney validly and legally bound the state parties.
The CA, in its decision, took cognizance of the agreement that allowed Smith to be detained inside the US Embassy. It further said the court "may not directly intervene in the exercise of diplomacy by the appropriate political organ of government."
Among the petitioners were retired CA associate justice Jose dela Rama; lawyers Emilio Capulong, Harry Roque and Florin Hilbay; and Makati Regional Trial Court (RTC) Judge Benjamin Pozon, who handed the guilty verdict on Smith for raping a 23-year-old Filipino woman, Nicole, at the Subic Bay Freeport on Nov. 1, 2005.
Named respondents in the petition were Smith, Romulo, Justice Secretary Raul Gonzalez Sr., Presidential legal counsel Sergio Apostol, Executive Secretary Eduardo Ermita, Interior and Local Government Secretary Ronaldo Puno, and the 16th Division of the CA.
The petitioners claimed that the VFA should be declared unconstitutional insofar as it derogates on the exclusive power of the Supreme Court to promulgate rules of procedure in all courts, and for violating petitioner's rights to due process and equal protection of the laws.
Citing a ruling of the SC in a previous case involving another treaty signed by the Philippines with Spain, the petitioners said the VFA and the Mutual Defense Treaty (MDT) signed by the government with the US "could not have intended to modify the laws and regulations for the reason that the executive department may not encroach upon the constitutional prerogative of the SC to promulgate rules for the admission to the practice of law in the Philippines, the power to repeal, alter or supplement such rules being reserved only to Congress of the Philippines."
They further cited Article VIII, Section 5, Paragraph 5 of the 1987 Constitution, which provides that the SC has the power to "promulgate rules... (that) shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase or modify substantive rights."
The provision further states that rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the SC.
"Hence, no other governmental entity may usurp this exclusive power of the SC without running afoul with the Constitution. The issue on the custody of an accused and/or convict is a matter of procedure, which under the Constitution is exclusively within the realm of judicial power," petitioners said.
They further pointed out that CA Justice Apolinario Bruselas, who penned the decision that mooted Smith's petition, misquoted US Chief Justice Wendell Holmes, rendering his premise in dismissing the Smith case to be lacking in legal or factual basis.
That case was declared moot after Smith was smuggled out of the Makati City jail and transported to the US Embassy.
Last week, Nicole's lawyers filed a similar suit before the high court, saying the VFA and the agreement is invalid in "effecting the release of Daniel Smith without court authority and in turning him to over to the US embassy."
Petitioner pointed out that the Constitution provides that a person charged with a crime punishable by reclusion perpetua has no right to temporary liberty upon the posting of a sufficient bail.
"Since respondent Smith has been convicted and sentenced to reclusion perpetua, he neither has the right to bail nor may he be admitted to bail, pursuant to the Constitution and Rule 114, Sec. 5 of the Rules of Criminal Procedure," she said.
Nicole also asked the SC to issue a warrant of arrest against Smith and direct the executive department through the Department of Justice (DOJ) and the Department of Foreign Affairs (DFA) "to immediately undertake steps to serve the warrant of arrest for respondent Smith to be returned to the custody of the Philippine Government and to be detained in a Philippine facility run by Philippine authorities." (ECV/Sunnex)
