This is what Paragraph 6, Article 5 (on criminal jurisdiction) of the Visiting Forces Agreement (VFA) says:
“The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with the United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.”
Paragraph 3(d) of the same article also states:
“Recognizing the responsibility of the United States military authorities to maintain good order and discipline among their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular importance, it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities receive the United States request.”
I guess the Philippine government did not consider the case of US Marine Lance Corporal Daniel Smith of “particular importance.” And even if Manila did, and had notified the US, lawyers can split hairs and argue that the VFA does not specifically require the US to give up jurisdiction over its military personnel.
Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney agreed that Smith, following his conviction for raping the Filipina woman known as Nicole, must be turned over to US custody and detained at the US embassy compound. Smith, escorted by Philippine cops, was spirited out of the Makati City Jail in the dead of night.
Why were those provisions in the VFA approved? We should ask the diplomats who negotiated the agreement during the presidency of Joseph Estrada.
The VFA is patterned after similar agreements the Americans have with several other countries. Washington considers these mere executive agreements that need no ratification by their Senate. But we insisted on ratifying it. Why did our Senate, again during Erap’s time, ratify the VFA with those provisions?
The Supreme Court, acting on petitions filed by Nicole, Bayan and a group led by former Senate president Jovito Salonga, upheld the VFA but ordered Smith’s transfer to a Philippine prison.
Perhaps the SC considered Smith’s conviction by the Makati Regional Trial Court the completion of all judicial proceedings. The conviction was handed down within a year after the crime, again in compliance with a VFA provision stating, “In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph” – including making Smith available for further investigation or judicial proceedings. “The one year period will not include the time necessary to appeal.”
Smith is appealing his case. But if the period for completion is one year, excluding the appeal, are judicial proceedings completed in his case? Then he can be turned over to Philippine custody.
Malacañang obviously is not about to insist on this, especially not with the US Congress just recently approving compensation for the remaining Filipino veterans of World War II as part of US President Barack Obama’s $787-billion economic stimulus package.
Such is the state of the nation. We cannot assert sovereignty because we remain dependent on Uncle Sam and many other countries. We are even starting to develop dependence on China.
We congratulate the veterans, of whom only about 18,000 are left in the Philippines and the US. But it would have been better if they had received that kind of compensation from their own government. After all, they were defending their own country, not the US.
How much is that lump sum of $9,000? Less than P500,000. That’s a total of less than P6 billion for the 12,000 surviving veterans in the Philippines. Our leaders can spend P123 million for overseas junkets, but prefer to rely on Uncle Sam to take care of our own war veterans.
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And we rely on Uncle Sam for many other things. Which is probably why the original decision on Smith’s case was half-baked and confusing.
Even if Nicole had flirted with Smith, sex with a drunken woman was Smith’s undoing. How drunk was Nicole? She could remember how many and what types of drinks she had, but the judge decided she was drunk enough.
The sex occurred in a van driven by a Filipino, with Smith’s fellow soldiers in it, all rushing to return to their ship. Whether or not they cheered Smith on, their failure to stop a rape made them accessories – including the driver, who insisted he did not think Nicole was raped. So why were the other soldiers cleared?
Either they should have all been convicted, with varying degrees of punishment, or else they should have all been cleared together with Smith. Either there was rape, witnessed by several men in a closed van, or else there was none.
The decision merits a closer review. But after the Makati court managed to comply with that one-year deadline, the case is now bogged down in the usual mire of the Philippine justice system. The Supreme Court ruling covers only custody; Smith’s appeal of his conviction is still with the Court of Appeals. How long will that case gather cobwebs before it reaches the SC?
Until that final SC ruling, it looks like the Americans intend to hold on to their Marine. And it looks like Malacañang does not intend to challenge it, regardless of the SC order on custody.
Can a Supreme Court order trump an executive agreement with a foreign government? It makes for disastrous diplomacy when international commitments made by our government is worth less than toilet paper.
We can scrap, amend or renegotiate the VFA. If it is scrapped, we also throw out all the US troops here. Washington isn’t sending its soldiers to non-war zones where there are no rules governing its troops.
If we renegotiate, we cannot change the rules in the middle of the game. The result of any renegotiation cannot be applied retroactively to Smith’s case.
In the meantime, because the venue of his detention was agreed upon by Romulo and Kenney, perhaps the two can meet again to amend their agreement. Diplomacy could offer a way out of this mess.
By Ana Marie Pamintuan
Updated February 18, 2009 12:00 AM