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Posted by lenolea on February 17, 2009

Adolfo Azcuna, ponente or author of the Supreme Court decision ordering the transfer of custody of US Marine Lance Corporal Daniel Smith to Manila recently admitted that Washington could not be compelled to comply with the decision.

Smith, a participant in the RP-US Balikatan military exercise, had been found guilty of raping a Filipino identified only as “Nicole” on November 1, 2005. Makati Judge Benjamin Pozon sentenced him to a minimum of 20 years to a maximum of 40 years imprisonment.

He was initially detained at the Makati City Jail but was later transferred to a facility inside the US Embassy compound in Manila. The verdict is under appeal before the Court of Appeals.

Voting 9-4 with two justices inhibiting, the High Tribunal ruled that the agreements signed by Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney on Dec. 19 and 22, 2006, which allowed the detention of Smith under US military custody at the US Embassy, were “not in accordance with the Visiting Forces Agreement (VFA).”

Passed by the Philippine Senate and signed by then President Joseph Estrada in 1999, the VFA, among other things, grants extra-territorial and extra-judicial “rights” to US servicemen visiting the Philippines for “military exercises”.

Azcuna, who retired Feb. 16, said that the US is not a party to the case. The Court, he added, cannot order the US to negotiate for the transfer.

In other words, Azcuna himself admits that the Supreme Court’s order for Smith’s transfer is pointless.
The High Court only asked the Department of Foreign Affairs (DFA) to negotiate with the US Embassy regarding Smith’s transfer to a facility under the Philippine government’s control.

Article V, Section 10 of the VFA states, “The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed upon by appropriate Philippine and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.”

The said provision is vague. The facilities mentioned in the provision do not necessarily mean detention facilities. If ordinary criminals convicted of crimes are automatically sent to the New Bilibid Prison, Smith may end up to anywhere but the New Bilibid Prison.

Already, Press Secretary Cerge Remonde said the government would keep the status quo on Smith pending the outcome of the appeal on his conviction.

Upholding the constitutionality of the VFA has rendered the Philippine government’s hands tied. Nine Supreme Court justices treacherously opted to perpetuate the Philippine government’s subservience to the US government.

Only four Supreme Court justices stood up for the country’s dignity and declared the VFA as unconstitutional. In his dissenting opinion, Chief Justice Reynato Puno called the VFA a continuing “slur on our sovereignty.” He argued that the VFA has not been ratified as a treaty by the United States and that its provisions are not fully enforceable under US law.

But Puno’s voice and of three other justices were drowned by the executive’s clear influence on other Supreme Court justices.

If the Philippine government is powerless in taking jurisdiction over an American soldier convicted of raping a Filipina, then the US soldiers can go on committing heinous crimes and the US government can always take care of the rapists, murderers and what-have-you within their forces.

The Supreme Court decision provides legal basis for the permanent “visits” of American troops in the country. The US soldiers will continue to render humanitarian missions while they engage in actual combat operations, surveillance and counter-insurgency operations. Direct military intervention is disguised as “military exercises.”

Why can’t the Philippine government just junk the VFA? What is there to lose with the abrogation of the VFA? The dilapidated Chinook helicopters and other Vietnam vintage war materials? The covert military operations of the US forces in Philippine soil under the guise of so-called military exercises? The modernization of the Armed Forces of the Philippines (AFP)? The Philippines’ status as a second front in the US’ war of terror?

No, we will not lose anything of real value. We will, in fact, regain our dignity as a nation. If only we have good leaders, we can choose not to be powerless even in the face of a powerful nation trampling upon Philippine sovereignty.

One Response to “Powerless?”

  1. eden said


    justice should be served. though Smith was sentenced to imprisonment he was still given special consideration. for what?! because he’s an American soldier?

    the VFA’s nth run is a very big question. no doubt, the Philippine government headed by Gloria Arroyo focuses only on the needs and the demands of her foreign employer.

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