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Thursday, December 28, 2006
Court notes US Marine's plea for custody transfer
MANILA -- US Marine Daniel Smith will likely celebrate New Year at the Makati City Jail despite efforts to convince an appellate court to transfer his custody to the US embassy.
In a one-page resolution, the Court of Appeals Special Sixteenth Division again did not act on Smith's petition seeking to restrain Makati Judge Benjamin Pozon from ordering his continued detention at the city jail pending final resolution of the rape case.
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The court merely noted the "Very Urgent Manifestation and Motion" filed by the Department of Foreign Affairs, represented by Solicitor General Antonio Eduardo Nachura, as well as the "Petitioner's Opposition to the Special Appearance" earlier filed by Smith's accuser, 23-year-old private complainant "Nicole."
Reacting to the CA's resolution, Nachura said: "We are still hopeful that the CA will still find merit in our manifestation before the year ends."
Last week, the Office of the Solicitor General asked the appellate court to order the immediate return of the 21-year-old Smith to the custody of the US embassy.
The petition was on the ground that the Makati Court completely ignored a provision in the RP-US Visiting Forces Agreement (VFA) that states that custody over a US soldier facing criminal charges resides with the US government pending the completion of all judicial proceedings.
Citing Article 5, paragraph 6 of the VFA, Nachura said the custody of any US personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with the US military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.
In its urgent motion, Nachura manifested to the CA that Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney already signed an agreement on December 18, 2006 for Smith to be turned over to the US embassy.
Romulo and Kenney signed the agreement for US custody of Smith after Pozon questioned the authority of Justice Secretary Raul Gonzalez and Chief State Prosecutor Jovencito Zuno, who have signed the same agreement with Kenney.
Pozon earlier said neither the DOJ chief nor Zuno is the appropriate Philippine authority that can legally enter into such an agreement and ask for transfer of custody because this "function legally belongs to President Gloria Macapagal-Arroyo or the Foreign Affairs secretary."
The bilateral agreement would have shown, Nachura said, that the Philippine government has no objections to turning Smith over to the US.
"Courts are only mandated to interpret the law, not to amend or modify it. In this case, respondent judge clearly went beyond the plain language of the law and engaged in judicial legislation in lending his own suggestions to what is an otherwise clear provision of the VFA (on the detention of criminally charged American servicemen)," Nachura said of Pozon's ruling.
For his part, Gonzalez, in a radio interview, said not even revising the VFA will force the transfer of Smith's custody to the Philippine government, pending the finality of Smith's case.
"If some sectors want Smith turned over to Philippine custody, then they should seek its amendment in the VFA. But right now that is the provision of the law. Even if you amend that, it cannot retroact," he said.
Earlier, Gonzalez said the unfavorable ruling of Pozon and the subsequent failure of the CA to immediately act on Smith's petition has unduly strained RP-US relations, prompting the US to cancel next year's Balikatan joint military exercises.
"I am hoping that the CA will decide before yearend. Actually we should not even be discussing this matter at this time. The time to discuss it is after the final conviction. This is still the judicial process so the US should have custody of Smith," Gonzalez said. (Sunnex)
For more Philippine news, visit Sun.Star Iloilo. (December 28, 2006 issue)
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