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Smith Transfer ‘Another Meiring’?

Published: December 30, 2006   |     |     |   Subscribe: RSS or Email    

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Wrong Appreciation of the VFA

The VFA is unconstitutional under Sec. 25, Art. XVIII of the Constitution which provides that :

Sec. 25. x x x foreign military bases, troops or facilities shall not be allowed in the Philippines EXCEPT UNDER A TREATY CONCURRED IN THE SENATE and, x x x RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING PARTY.

The US has not recognized the VFA as a treaty, and has refused to have it ratified by the US Senate until today. Since, the VFA is not recognized as a treaty by the US, it cannot be the basis for the entry of “foreign troops and facilities” into the Philippines. It is the height of self-humiliation for Pres. Arroyo to insist on calling the VFA a ‘treaty’ while the US refuse to accord it the same level of respect.

Additionally, transferring Smith to the custody of the US violates the VFA presuming the VFA is constitutional. The relevant provision is not Paragraph 6, which discusses the trial stage, but the later provision under Paragraph 10, which appropriately discusses the custody of those convicted and are serving sentence, to wit:

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

Cpl. Daniel Smith has been convicted, and is now serving sentence. If he loses his appeal in the Supreme Court, the time he spent under detention is counted as part of his sentence under the Rules of Court. Sec. 10 no longer provides for US custody, but merely requires that the US has a say on which facility he will serve his sentence. The facility contemplated under sec. 10 is any of the Philippine prisons, and not a prison facility outside the Philippine jurisdiction. The US Embassy is not a detention facility abd is a foreign territory outside the jurisdiction of Philippine courts.

Unequal Relations under the US Counterpart VFA

The US also signed a counterpart VFA which regulates the entry of Filipino soldiers in the US. The counterpart VFA is strictly and unequally construed against the Philippines.

Under the US VFA, the US can immediately imprison any Filipino soldier who commits a crime in US territory, and may waive said right only upon ‘request’ of the Philippine government, but unlike the Philippine VFA, the ‘request’ may be denied. Article VIII, Sec. 2 of the VFA Counterpart Agreement in the US (VFA Part II) merely requires the US government to request US ‘authorities’ detaining a Filipino to release that Filipino to Philippine custody:

Sec. 2 (VFA II) x x x The (US) Department of Defense will ask the appropriate authorities in the United States having jurisdiction over an offense committed by Republic of the Philippines personnel to waive in favor of the Republic of the Philippines their right to exercise jurisdiction, except in cases where the Department of State and the Department of Defense, after special consideration, determine that United States interests require the exercise of United States federal or state jurisdiction.

Since the US maintains the right to refuse the Philippine ‘request’ for custody, the Philippines should also do the same under the terms of the counterpart agreement. By giving the US the absolute discretion on the custody of a convicted US personnel, immediately clashes with the Constitutional rights of the rape victim, legal provisions on bail and the equal protection clause.

This is the first time when a US serviceman is convicted of rape and allowing the convict to escape punishment is not only unjust on the victim but an insult to Philippine sovereignty. This disparity in treatment is magnified by the fact that arrested Filipino “TNT’s” in the US are immediately detained and deported like cattle for not having a visa, while the convicted Smith stay in comfortable rooms in his embassy.

The Visiting Forces Agreement is unconstitutional. It not only violates the 1987 Constitution’s provisions on deployment of foreign troops, nuclear free Philippines and provisions on sovereignty, among others, but it also violates the Constitution’s provisions on criminal offenses. By not asserting Philippine sovereignty and jurisdiction over the convicted rapist and transferring his custody to a foreign power, in violation of the Constitution, Pres. Arroyo has added one more ground for her impeachment and one more item in the list of crimes she has committed against the Filipino people.

Reference : Atty. Neri Javier Colmenares

Date : December 30, 2006