(full disclosure: the Public Interest Law Center of which i’m board member handled for Bayan in 1999, the VFA case entitled Bayan et al vs. Executive Secretary, i was assigned to it as handling lawyer).
Looking out of our prisons. (photo removed) the Philippine government and the U.S. government under the VFA can agree on a detention facility for convicted accused (on appeal) Daniel Smith; it doesn’t have to be the Makati City Jail and in fact it doesn’t have to be any Philippine jail, if that might be the agreement that the parties would come to; but it must be a facility that is covered by the jurisdiction of the Philippine courts. (i don’t agree with the provisions in the VFA but there they are). That is the essence of the dispositve portion of Judge Benjamin Pozon’s decision and his ruling on the motions. It is a middle ground found in the VFA itself. A mechanism for an agreement found in the VFA. (But the DOJ secretary, instead of looking at this decision as a middle ground between two extremes, has resorted to the usual knee-jerk Red-baiting.)
The dispositive portion had stated that “pending agreement”, the convicted accused shall be held at the Makati City Jail. Both parties, the Philippine representative (DFA) and the U.S. Embassy have in their hands the power to move Daniel Smith out of Makati City Jail now, today, by choosing a detention facility within the jurisdiction of the Philippines. Why must it be within our jurisdiction? So that the convicted accused could be covered by the orders of our courts; a convicted accused is not in the same legal status as a person who has just been charged, even under the VFA.
Courts no longer allow convicted accused in capital offenses any kind of bail, upon conviction in the trial court the evidence of guilt has been shown to be strong (guilt is established by evidence beyond all reasonable doubt), the possibility of flight greater where one has been convicted of a capital offense; and that is why a convicted accused is not in the same legal status as a person who has just been charged; (under rules of criminal procedure, an accused convicted of a capital offense committed in Philippine territory has “less freedoms” even pending appeal, as no kind of bail and no kind of travel is allowed and the convicted accused is kept in detention pending appeal (bail is a matter of right even in capital offense cases where the evidence of guilt is not strong; but once the accused in a capital offense has been convicted in the trial court, obviously the evidence is strong and bail is no longer allowed.). Of course, the U.S. Embassy would argue that our rules of criminal procedure do not apply to their soldiers who have committed crimes within Philippine territory; but even under the VFA itself, the provisions make a distinction between proceedings where the accused has only been charged and where the accused had been convicted. Look at the provisions and see how they are chronologically arranged in the order of a criminal trial, from being charged to being sentenced, Section 6 speaks of “when the Philippines is to exercise jurisdiction; Sec. 7 is on investigation and trial and production of evidence; Sec. 8 is on the double jeopardy rule; Sec. 9 is on the other rights of the accused during trial; and Sec. 10 is on confinement and detention after trial.
VFA, source: www.dfa.gov.ph:
xxx
6. 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.
United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one-year period will not include the time necessary to appeal. Also, the one year period will not include any time during which scheduled trial procedures are delayed because
United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities shall assist each other in the carrying out of all necessary investigation into offenses and shall cooperate in providing for the attendance of witnesses and in the collection and production of evidence, including seizure and, in proper cases, the delivery of objects connected with an offense.
8. When United States personnel have been tried in accordance with the provisions of this article and have been acquitted or have been convicted and are serving, or have served their sentence, or have had their sentence remitted or suspended, or have been pardoned, they may not be tried again for the same offense in the Philippines. Nothing in this paragraph, however, shall prevent United States military authorities from trying
United States personnel for any violation of rules of discipline arising from the act or omission which constituted an offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by Philippine authorities, they shall be accorded all procedural safeguards established by the law of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such witnesses;
(d) To present evidence in their defense and to have compulsory process for obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the same basis as nationals of the
Philippines;
(f) To have the services of a competent interpreter;
(g) To communicate promptly with and to be visited regularly by
United States authorities, and to have such authorities present at all judicial proceedings. These proceedings shall be public unless the court, in accordance with Philippine law, excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of
United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious courts.
If you read this carefully, you would see that the quoted provisions are arranged in the order of the criminal trial. Therefore, quite clearly and sensibly, even under the VFA, at this stage of the litigation, it’s Section 10 of the VFA.
I don’t care if the detention facility they agree on is the Manila Hotel (well, not that I don’t care; but our hands are tied; and VIP’s in the Philippines have been given special detention facilities but still within the jurisdiction of our courts); the important thing is for the convicted accused to remain within the reach and jurisdiction of our courts. The U.S. Embassy is outside our jurisdiction. The insistence on Sec. 6 is sheer stubbornness on the part of the U.S. government and subservience on the part of our DOJ. The U.S. Embassy even issued a veiled threat that US-Philippine military relations hinged on this case, changing its tune from “this case will not affect US-Philippine relations” to the following: “Continued US-Philippine military cooperation relies upon adherence to the VFA, which provides the framework for the legal status of visiting US service members.” (statement of the U.S. Embassy).
That’s not entirely legally accurate; there is a “mother agreement” the Mutual Defense Treaty (not that I’m advocating it; it’s just that; it’s still there):
(source: same website source above), as follows:
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES
AND THE UNITED STATES OF AMERICA 30 August 1951
The Parties to this Treaty,
xxx
Desiring to declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific Area,
Desiring further to strengthen their present efforts for collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific Area,
xxxHave agreed as follows:
The Parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purpose of the United Nations.
In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.
The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific.
Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.
For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific.
Article VI
This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of international peace and security.
This Treaty shall be ratified by the United States of America and the Republic of the Philippines in accordance with their respective constitutional processes and will come into force when instruments of ratification thereof have been exchanged by them at
Manila.
This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to the other Party.
IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
DONE in duplicate at Washington this thirtieth day of August 1951.
As long as the parties agree on a detention facility covered by our courts — any facility within our jurisdiction — this tangle would be untangled.
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