LCPL Daniel Smith stays in jail

Judge Banjamin Pozon refuses transfer to US Embassy

By: Alvin Murcia with Hector Lawas Tess Bedico, Cristina Lee-Pisco

NO GO — Senior Supt. Delvic Oreiro, Makati City jail warden in charge of the detention of US Marine Lance Corp. Daniel Smith, shows a copy of judge Benjamin Pozon’s decision denying a petition to transfer the convicted US Marine to the custody of the US Embassy. AFP US MARINE Lance Corporal Daniel Smith will remain at the Makati City Jail. Judge Benjamin Pozon yesterday denied for lack of merit Smith’s petition that he be transferred to the US Embassy while his conviction is being appealed. Pozon said Smith will stay in jail until the Philippine and US governments “shall have come to a binding agreement as to the proper facilities where the accused shall carry out his confinement or detention during his appeal.” With his ruling, the court junked the two “agreements” signed by US Ambassador Kristie Kenny, Chief State Prosecutor Jovencito Zuno and Justice Secretary Raul Gonzalez. Gonzalez said Pozon “was wrong” and that the US Embassy should have custody of Smith as provided under the Visiting Forces Agreement. The Justice chief said the judge’s decision had “ruffled” RP-US relations. Smith was recently sentenced to life imprisonment for raping a Filipino woman. His three other co-accused were acquitted. Pozon, however, insisted that Article V, Paragraph 6, of the VFA no longer applies since the court has rendered its judgment. “The custody of accused Smith by the US military authorities was terminated after the completion of the trial and rendition of judgment of conviction,” he noted. “The reason for this is that the US military authorities has no more obligation to make the accused available to the Philippine authorities or to this court for judicial proceedings after the trial had been completed,” he added. The judge said his decision to temporarily detain Smith at the Makati City Jail is in compliance with the provisions of the VFA, particularly Article V, Paragraph 10. “This court, in pursuance of the country’s obligation under the said treaty, did not commit Smith to the national penitentiary. Instead, this court temporarily committed him to the Makati City Jail pending agreement by appropriate Philippine Authorities and Unites States authorities on the facilities where the confinement or detention of the said accused shall be carried out,” he said. The court also ruled that the “agreement” to transfer custody to the US Embassy signed by the US Ambassador and DoJ officials is not binding. Pozon said only the President, or the Foreign Affairs Secretary, can enter into such an agreement. Gov’t to intervene Gonzalez, however, said the government will intervene to have Smith transferred to the US Embassy. Malacañang earlier concurred with the position of the VFA Commission that Article 5. Paragraph 10 of the treaty that the US Embassy should take custody of US servicemen who violate Philippine laws until the end of the judicial proceedings. Gonzalez said it is an “international obligation” of the Philippine government to intervene in the case in keeping with the VFA. But he said any government action would depend on the next step to be taken by the counsels of Smith. “The intervention there is once there is let’s say a petition for certiorari on the ground that the judge abused his discretion in refusing to surrender custody to the Americans when the judicial proceedings are ongoing…The lawyer of Smith could go to the Court of Appeals or the Supreme Court,” he said. “When that is filed, the Department of Foreign Affairs can file a petition in intervention in favor of the position taken by Smith,” he added. The DFA said it is coordinating with the DoJ in coming out with a solution with which the Philippines can comply to the VFA provision. “The DFA will continue to explore remedies available in order for the Philippines to be in compliance with its treaty obligations,” DFA spokesman Eduardo Malaya said.