Palace to look into custody aspect of VFA

Malacañang will look into the custody aspect of the RP-US Visiting Forces Agreement (VFA) once it starts reviewing the controversial agreement, Executive Secretary Paquito "Jojo" Ochoa Jr. said Tuesday. Ochoa, the chair of the Presidential Commission on the VFA, said the agreement's provisions on criminal jurisdiction will definitely be one of those that would be reviewed because it was one of the biggest issues raised at the height of the rape case against US Marine Lance Cpl. Daniel Smith. "One of the main bones of contention and opposition to the VFA was the custody of the soldiers who might violate our criminal laws especially when it's a non-bailable offense," Ochoa said in an interview with reporters. "We don't want that happening again. We want to review it again para at least we can handle it better in case. Hopefully di naman mangyari yung ganung cases later during our time (Hopefully such cases will not happen later during our time)," he said. The VFA contains the framework which governs the conduct, exit and entry movements of American troops visiting the Philippines for military exercises. It was ratified by the Philippine Senate on May 27, 1999. From Makati jail to US Embassy Smith, a participant in the 2005 Balikatan exercises under the auspices of the VFA, was accused by Suzette Nicolas — then known to the public as "Nicole" — of raping her inside the Subic Bay Freeport on Nov. 1, 2005. [See: Subic Rape Case Timeline] On Dec. 4, 2006, the Makati Regional Trial Court Branch 139 meted out a guilty verdict against Smith and ordered that he be sent to the Makati City Jail. The day after, the US Embassy reaffirmed US military authorities' right to exercise custody over US personnel whom the Philippines is to exercise jurisdiction until all judicial proceedings are completed. The VFA states that "the custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings." Smith's lawyers asked the Makati RTC Branch 139 to place Smith under US custody, but Judge Benjamin Pozon of the said branch denied the request. On Dec. 14, 2006, Smith's lawyers filed before the Court of Appeals a petition for a temporary restraining order on Pozon's order. Five days after, Foreign Affairs Secretary Alberto Romulo and then US Ambassador Kristie Kenney signed an agreement which states that Smith should be returned to US military custody at the US Embassy in Manila in accordance with the VFA. The Court of Appeals rejected Smith's petition for a TRO on Judge Pozon's order. Romulo and Kenney then signed a second agreement which gave the specifics of Smith's transfer and detention at the US Embassy. "From the Makati City Jail, he [Smith] will be detained at the first floor, Rowe (JUSMAG) Building, US Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military personnel. The Philippine police and jail authorities, under the direct supervision of the Philippine Department of Interior and Local Government (DILG) will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA," read the agreement. 'Nicole' recants On Dec. 29, 2006, law enforcement agents transferred Smith from the Makati City Jail to the US Embassy shortly before midnight. The transfer was carried out upon the order of the Department of Interior and Local Government. The move was widely criticized by groups critical of the VFA and those who rallied behind Nicolas. Despite the wide publicity the case garnered, however, Nicolas said in a sworn statement in March 2009 that she doubts "whether the sequence of events in Subic last November of 2005 really occurred the way the court found them to have happened." On April 23, 2009, the Court of Appeals acquitted Smith of the rape charge and ordered his immediate release. The next day, the US Embassy in Manila said Smith left the Philippines under the authority of US military officials. 'Criminal law is territorial' In saying that a review of the VFA will be conducted, Ochoa said that as a lawyer, he knows that criminal law is territorial or exclusive to the territory of a country. "Wherever and whoever you are, and wherever you commit a crime inside the country, you're subject to the criminal law of that land, so therefore without any exception," he said. "But then siyempre merong considerations yung VFA, ayoko namang magjudge right away on that (But of course there are considerations in the VFA, and I don't want to judge right away on that)," he added. Ochoa said he cannot determine yet when the commission can finish its review of the VFA, saying he has yet to sit down and study the agreement thoroughly. The Supreme Court upheld the constitutionality of the VFA after it was questioned by a group that included former Senate President Jovito Salonga and Evalyn Ursua, the former lawyer of Nicolas. The DFA and several legislators have long been calling for a review of the controversial agreement. Last August, Senate foreign affairs committee head Loren Legarda said her committee will assess the impact of the VFA and consider a resolution filed by Senator Miriam Defensor Santiago which seeks the termination of the agreement. — with information from GMA News Research/RSJ, GMANews.TV