thedrifter
12-09-06, 06:01 AM
Makati court ignores RP-US note on Smith
By Michael Punongbayan
The Philippine Star 12/09/2006
[AD] The Makati City Regional Trial Court (RTC) refused yesterday to issue a ruling on whether or not convicted rapist Lance Corporal Daniel Smith of the United States Marines should be returned to US custody based on an agreement signed by US Ambassador Kristie Kenney and Chief State Prosecutor Jovencito Zuño.
RTC Judge Benjamin Pozon instead scheduled for Monday a hearing on a motion for reconsideration of his Dec. 4 order to detain the 21-year-old Smith at the Makati City Jail (MCJ).
"It doesn’t seem appropriate that (Zuño is the signatory)," Pozon said when asked why he did not honor the agreement between US and Philippine authorities to detain Smith at the US Embassy while his case is on appeal.
A new agreement signed by Kenney and Justice Secretary Raul Gonzalez was later sent to Pozon’s office. But the judge also ignored it.
Smith, who was found guilty of raping a 23-year-old Filipina identified only as "Nicole," will have to stay at the MCJ for at least two more days.
Nicole’s lawyers have formally objected to Smith’s transfer to US custody and have threatened street protests to oppose it.
Smith is being held at the MCJ records room, which was converted into a temporary holding room.
Smith’s lawyers, Nicole’s private counsel Evalyn Ursua and former senator and human rights lawyer Rene Saguisag were ordered to attend the hearing on Monday.
Pozon also sent notices to the Department of Foreign Affairs (DFA), Department of Justice (DOJ) and the Visiting Forces Agreement (VFA) Commission.
Joan de Venecia, one of Smith’s lawyers, said the court did not act on their manifestation citing an agreement between the US and the Philippines as to where their client will be detained or who takes custody of him.
"The government of the Republic of the Philippines and the government of the United States of America agree that, in accordance with the VFA signed between our two nations, Lance Corporal Daniel Smith, US Marine Corps, be returned to US military custody at the US Embassy in Manila," the agreement read.
De Venecia said Judge Pozon’s refusal to act on their manifestation, citing the documents signed by Kenney and Zuño, means he does not honor the agreements or wants these agreements discussed further.
"I feel that, right now, because there’s already an agreement and this agreement is between the governments of the Philippines and the US, we might already be in breach of our international obligations or international law," she said.
De Venecia said they believe that orders affecting their client’s detention must come from Pozon, adding that they respect the Makati City court’s authority and jurisdiction.
However, she said other avenues or means by which Smith can be removed from the MCJ are being explored. She refused to elaborate.
Meanwhile, the Department of Justice asked Pozon to respect the VFA, which the DOJ said allows the US Embassy to place Smith under its custody until his life sentence becomes final.
Two US Embassy officials led by US legal attaché Jeff Cole visited the office of Zuño to obtain a copy of the motion signed by Gonzalez signifying that the DOJ had "no objection" to the request for immediate turnover of Smith to the US Embassy.
Zuño said the Philippine government, being a signatory to the VFA with the US government, will have to respect this agreement.
"It is now addressed to the court. It is up to the court to decide. If it rules against it, the US Embassy can go to the Court of Appeals or the Supreme Court," Zuño said. "This is a high-level matter and it will be between the DFA and the US Embassy now."
Zuño said Cole represented the Philippine government in the US in the extradition case of businessman Charlie "Atong" Ang.
"(Cole) was the one who argued, representing the Philippine government. The DFA can enter into the picture (to insist on Smith’s turnover to the US Embassy) because we are now talking about the VFA," Zuño said.
Gonzalez said he had signed another joint motion to allow Smith’s transfer to the US Embassy: "Let us find out first what will be the court’s action on this," he said.
The joint motion signed by Gonzalez supports earlier calls by the US Embassy for the Makati City RTC to permit the diplomatic post to take custody of Smith.
"(The US Embassy) claimed that they should have custody of Smith because (the) appeal is still part of the judicial proceedings and they filed a motion for immediate turnover of Smith to the US Embassy. After coordinating with the DFA, we agreed to have one position — and that is to respect the terms and conditions of the VFA," Zuño said.
Zuño said the Philippine government will have to respect the VFA: "Smith is not an ordinary citizen. He is a member of the US army participating in a military exercise. Therefore, he is covered by the VFA."
Citing Article V, Paragraph 6 of the VFA, the DFA said earlier that the US is entitled to have custody of Smith until his conviction becomes final.
In a note verbale, the US Embassy said it "reaffirms the right of the US military authorities to exercise custody of any US personnel over whom the Philippines is to exercise jurisdiction until completion of all judicial proceedings."
Zuño said the Philippines must abide by the VFA because it is a signatory to the agreement.
He said the Philippine government will ensure that Smith will not be given preferential treatment while in detention at the US Embassy: "He will be treated as a detainee."
Gonzalez earlier admitted that the Philippine government will have difficulty getting custody of Smith because of the VFA.
Smith was sentenced to life imprisonment last Monday for the rape of "Nicole" at the Subic Bay Freeport on Nov. 1 last year. — With Jose Rodel Clapano, Sheila Mae Milan, AP
Ellie
By Michael Punongbayan
The Philippine Star 12/09/2006
[AD] The Makati City Regional Trial Court (RTC) refused yesterday to issue a ruling on whether or not convicted rapist Lance Corporal Daniel Smith of the United States Marines should be returned to US custody based on an agreement signed by US Ambassador Kristie Kenney and Chief State Prosecutor Jovencito Zuño.
RTC Judge Benjamin Pozon instead scheduled for Monday a hearing on a motion for reconsideration of his Dec. 4 order to detain the 21-year-old Smith at the Makati City Jail (MCJ).
"It doesn’t seem appropriate that (Zuño is the signatory)," Pozon said when asked why he did not honor the agreement between US and Philippine authorities to detain Smith at the US Embassy while his case is on appeal.
A new agreement signed by Kenney and Justice Secretary Raul Gonzalez was later sent to Pozon’s office. But the judge also ignored it.
Smith, who was found guilty of raping a 23-year-old Filipina identified only as "Nicole," will have to stay at the MCJ for at least two more days.
Nicole’s lawyers have formally objected to Smith’s transfer to US custody and have threatened street protests to oppose it.
Smith is being held at the MCJ records room, which was converted into a temporary holding room.
Smith’s lawyers, Nicole’s private counsel Evalyn Ursua and former senator and human rights lawyer Rene Saguisag were ordered to attend the hearing on Monday.
Pozon also sent notices to the Department of Foreign Affairs (DFA), Department of Justice (DOJ) and the Visiting Forces Agreement (VFA) Commission.
Joan de Venecia, one of Smith’s lawyers, said the court did not act on their manifestation citing an agreement between the US and the Philippines as to where their client will be detained or who takes custody of him.
"The government of the Republic of the Philippines and the government of the United States of America agree that, in accordance with the VFA signed between our two nations, Lance Corporal Daniel Smith, US Marine Corps, be returned to US military custody at the US Embassy in Manila," the agreement read.
De Venecia said Judge Pozon’s refusal to act on their manifestation, citing the documents signed by Kenney and Zuño, means he does not honor the agreements or wants these agreements discussed further.
"I feel that, right now, because there’s already an agreement and this agreement is between the governments of the Philippines and the US, we might already be in breach of our international obligations or international law," she said.
De Venecia said they believe that orders affecting their client’s detention must come from Pozon, adding that they respect the Makati City court’s authority and jurisdiction.
However, she said other avenues or means by which Smith can be removed from the MCJ are being explored. She refused to elaborate.
Meanwhile, the Department of Justice asked Pozon to respect the VFA, which the DOJ said allows the US Embassy to place Smith under its custody until his life sentence becomes final.
Two US Embassy officials led by US legal attaché Jeff Cole visited the office of Zuño to obtain a copy of the motion signed by Gonzalez signifying that the DOJ had "no objection" to the request for immediate turnover of Smith to the US Embassy.
Zuño said the Philippine government, being a signatory to the VFA with the US government, will have to respect this agreement.
"It is now addressed to the court. It is up to the court to decide. If it rules against it, the US Embassy can go to the Court of Appeals or the Supreme Court," Zuño said. "This is a high-level matter and it will be between the DFA and the US Embassy now."
Zuño said Cole represented the Philippine government in the US in the extradition case of businessman Charlie "Atong" Ang.
"(Cole) was the one who argued, representing the Philippine government. The DFA can enter into the picture (to insist on Smith’s turnover to the US Embassy) because we are now talking about the VFA," Zuño said.
Gonzalez said he had signed another joint motion to allow Smith’s transfer to the US Embassy: "Let us find out first what will be the court’s action on this," he said.
The joint motion signed by Gonzalez supports earlier calls by the US Embassy for the Makati City RTC to permit the diplomatic post to take custody of Smith.
"(The US Embassy) claimed that they should have custody of Smith because (the) appeal is still part of the judicial proceedings and they filed a motion for immediate turnover of Smith to the US Embassy. After coordinating with the DFA, we agreed to have one position — and that is to respect the terms and conditions of the VFA," Zuño said.
Zuño said the Philippine government will have to respect the VFA: "Smith is not an ordinary citizen. He is a member of the US army participating in a military exercise. Therefore, he is covered by the VFA."
Citing Article V, Paragraph 6 of the VFA, the DFA said earlier that the US is entitled to have custody of Smith until his conviction becomes final.
In a note verbale, the US Embassy said it "reaffirms the right of the US military authorities to exercise custody of any US personnel over whom the Philippines is to exercise jurisdiction until completion of all judicial proceedings."
Zuño said the Philippines must abide by the VFA because it is a signatory to the agreement.
He said the Philippine government will ensure that Smith will not be given preferential treatment while in detention at the US Embassy: "He will be treated as a detainee."
Gonzalez earlier admitted that the Philippine government will have difficulty getting custody of Smith because of the VFA.
Smith was sentenced to life imprisonment last Monday for the rape of "Nicole" at the Subic Bay Freeport on Nov. 1 last year. — With Jose Rodel Clapano, Sheila Mae Milan, AP
Ellie