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Putting The VFA On Trial

February 27, 2009


The government of the day has drawn the line putting it in direct opposition to public agitation against the RP-US Visiting Forces Agreement, an agitation triggered by the cobtinued stay of lance Corporal Daniel Smith in the US Emassy on scenic Roxas Boulevard,

Filipinos are not being told about the progress of the negotiations ordered by the Supreme Court for an agreement on the custody of Lance Corporal Daniel Smith while the Court of Appeals is reviewinf the American’s appeal of his 2006 rape conviction.

That’s understandable given how diplomatic talks are.

But surely the agreement, if and when it is crafted, should now be “in accord” with the RP-US Visiting Forces Agreement unlike the Romulo-Kenney pact which allowed Smith to be spirited out of the Pasay city jail in the dead of the night.

Smith was moved just hours after the Pasay City Regional Trial Court found him guilty of raping Suzette Sombilon Nicolas in Subic.

(Press reports have described Nicolas, a.k.a. ‘Nicole’ as a ‘commercial sex worker’ while Smith was an Okinawa-based Marine from St. Louis and was on liberty in Subic Bay Freeport after participating in the annual Balikatan Exercise when the rape occurred. During his seven-month trial, he claimed the sex was consensual. The three other co-respondents of Smith were acquitted.)

It was recently retired Justice Adolf Azcuna who wrote the 9-4 decision of the full Supreme Court which also upheld the VFA’s constitutionality.

But a telling part of that decision reads: “It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after conviction, because they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be ‘by Philippine authorities.’ Therefore, 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. Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.”

affirm-smith-conviction-demo-montage1This is the point now being pressed in the 46-page Motion for Reconsideration filed yesterday before the high court by the lawyer of ‘Nicole’, citizens groups, and former Senate President Jovito Salonga.

The SC justices could very well just deliberate among themselves and resolve the matter with little time lost.

But with the Court of Appeals review still forthcoming along with the Smith custody talks pending, all the parties in interest have little option but to wait.

No one, of course, can deny Filipinos two of the most persuasive tools in a democracy: the freedoms of speech and to peaceably assemble.


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