SC rules against Daniel Smith detention at US Embassy

(Updated) MANILA, Philippines – The Supreme Court on Wednesday ruled that convicted rapist Lance Cpl. Daniel Smith be placed under the custody of Philippine authorities, overturning the agreements between the Department of Foreign Affairs (DFA) and the US Embassy. Voting 9-4 with two inhibitions, the court ruled that that the agreements between Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney allowing Smith's detention at the US Embassy was not in accordance with the Visiting Forces Agreement (VFA). "The Romulo-Kenney Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not 'by Philippine authorities,'" the court said. Smith, a participant in the 2005 Balikatan exercises under the auspices of the VFA, was convicted by the Makati Regional Trial Court of raping a Filipina inside the Subic Bay Freeport last Nov. 1, 2005. On Dec. 29, 2006, while the case was on appeal at the Court of Appeals, Smith was transferred from the Makati City Jail to the US Embassy on the basis of an executive agreement signed on Dec. 22, 2006 between Romulo and Kenney. Nationalist former Senators Jovito Salonga and Wigberto Tañada challenged the legality of the agreement before the Supreme Court. In its ruling on Wednesday, the court also ordered Romulo to "forthwith negotiate" with Kenney "for the proper agreement on detention facilities under Philippine authorities." Pending negotiations, the court allowed Smith to remain at the US Embassy. In a press conference, SC spokesman Jose Midas Marquez said the High Court did not issue a deadline for the negotiations but wanted these to take place immediately. Transfer to the NBP The justices who voted against Smith's detention at the US Embassy were Associate Justices Adolfo Azcuna, Leonardo Quisumbing, Consuelo Ynares-Santiago, Renato Corona, Dante Tinga, Minita Chico-Nazario, Presbitero Velaco, Teresita Leonardo-De Castro, and Arturo Brion. Chief Justice Reynato Puno and Associate Justice Antonio Carpio filed dissenting opinions, along with Associate Justices Ma. Alicia Austria-Martinez and Conchita Carpio Morales. Associate Justices Antonio Eduardo Nachura and Diosdado Peralta inhibited themselves. In their dissenting opinions, Puno and Carpio said that Smith should be transferred to the New Bilibid Prison (NBP) in Muntinlupa pending final resolution of his appeal. Over at Congress, Senate President Juan Ponce Enrile said Smith should be brought to the NBP following the SC's ruling. "If he committed a crime under Philippine law then he must [be taken to Muntinlupa], like all persons charged with a crime under Philippine law. They go to Muntinlupa. So there is no exemption for Mr. Smith. He must go to Muntinlupa," Enrile told reporters. Enrile said that the detention should be done under Philippine law by a Philippine agency. "Kung sa Amerika nangyari yun, hindi ka ilalagay sa hotel, ilalagay ka sa karsel. Eh ang karsel natin e na sa Muntinlupa [If that happened in America , he would not be brought in a hotel. He would be put in a detention facility. The Philippines ' detention facility is in Muntinlupa]," Enrile said. VFA's constitutionality upheld In the same ruling, the High Court also affirmed the constitutionality of the VFA, the mutual defense agreement between the Philippines and the US that was signed in 1999. The court said the agreement "was duly concurred in by the Philippine Senate and has been recognized as a treaty by the US." "Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine Senate and the US Senate, there in no violation of the Constitutional provision resulting from such presence," the Court said. "The VFA, being a valid and binding agreement, the parties are required as a matter of international law to abide by its terms and provisions," the SC added. But those who filed a petition seeking to have the VFA declared unconstitutional will ask the court to reconsider its ruling. A report over dzBB radio quoted lawyer Evelyn Ursua – counsel for Smith's rape victim – said they would file a motion for reconsideration to have the visiting forces agreement struck down as unconstitutional. Noted, raffled off In reaction to the decision, the US Embassy in the Philippines said they passed it on the US government because it involved legal matters. "The US Embassy has taken note of the Supreme Court decision regarding the Visiting Forces Agreement (VFA)," the US Embassy said in a statement. "As it concerns important legal issues, we have referred it to United States Government legal experts in Washington," it added. After the SC released its decision, the Court of Appeals raffled off Smith's pending appeal on his rape case. The handling of the appeal was held off after the resignation of Justice Agustin Dizon, who originally took up the case. During Wednesday's raffle, Smith's appeal will now be handled by Justice Monina Arevalo-Zeñarosa as the new ponente. She will be accompanied by Mariano del Castillo and Apolinario Bruselas Jr. Protest Members of a militant group massed at the Supreme Court in Manila immediately after learning about the decision. The group expressed delight over the order to transfer Smith under Philippine custody, but still criticized the court for insisting on the constitutionality of the VFA. Bayan Muna party-list Rep. Teodoro "Teddy" Casiño said that the continued military exercises between the US and the Philippines are an affront to the Filipinos' rights. Casiño lamented how the Supreme Court seemed to have been limiting its powers over Smith's particular case and not looking at the VFA as a whole. Akbayan is allied with another militant group Bagong Alyansang Makabayan (Bayan), which filed – along with its member organizations – the petition before the Supreme Court to declare the VFA as void and unconstitutional. – With Mark Merueňas, Amita Legaspi and Carlo Lorenzo, GMANews.TV