American rapes filipina then rapes Philippine Constitution - where's US democracy, dead!

Daily Tribune By Michaela P. del Callar and Sherwin C. Olaes 12/31/2006
Lawsuits are reportedly being readied by several groups against Palace officials, as well as the top executive, following President Arroyo’s ‘rape of the Constitution’ with her order to the Department of Interior and Local Government (DILG) to free convicted American rapist, Lance Cpl. Daniel Smith, while handing him over to the American Embassy officials who now have Smith in their custody. But a DILG official, Undersecretary Marius Corpus, yesterday insinuated that the Philippine Constitution is inferior to the President’s executive action of freeing the American rapist and handing him over to the US authorities, saying in a Q-TV interview yesterday this (the release of Smith) is a government to government transaction (done) in the course of foreign relations. The Philippines is a member of the community of nations. In international law where the Philippines signed a treaty, we cannot invoke the Constitution. This is a purely executive action. Malaca also yesterday defended the government’s action to spirit Smith away and in the dead of the night. Presidential legal counsel, Sergio Apostol said the Palace did not violate the law nor ignored the court since it used, as basis for Malaca’s decision to free Smith, the ruling of Makati City Regional Trial Court (RTC) Judge Benjamin Pozon, which states that Smith would be ‘temporarily detained’ at the Makati City jail until an agreement between the Philippines and the US shall have been finalized, on how the Smith case would be handled. Since there is already an agreement settled between Department of Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney, there is now a basis for the transfer of custody, Apostol said, adding that they have acted in accordance with the law. We have not violated anything.
Defending the unusual time of Smith’s release from the Makati City Jail, Apostol stressed that not even the hour of Smith’s transfer should be questioned by anyone because it is within the prerogative of the Bureau of Jail Management and Penology. Besides, he said the US Marine convicted of rape had already spent sufficient time in the city jail. A senior Foreign Affairs official yesterday confirmed it was the DILG that authorized the release of the convicted American rapist, but admitted that the release of Smith was in clear violation of the law. The official, speaking on condition of anonymity, said a DILG legal opinion, which was handed to the US Embassy in Manila last night, was the basis for Smith’s transfer to the US Embassy in Manila late Friday. It contains the same opinion submitted by the Solicitor General which was junked by the Court of Appeals last week, the official said. The official said the document states that custody should be immediately transferred to the US Embassy in Manila. After the transfer, the official said, US military authorities will take charge of the upkeep of Smith while Philippine authorities the police and jail officials are given access to Smith at the US Embassy to make sure that he is still in the country while in detention. But the official said the transfer of Smith was a [violation’ of Philippine laws. It preempted a motion filed by the Solicitor General which has not yet been acted upon by the Court of Appeals. They acted subjudice, the official said. US Embassy spokesman Matthew Lussenhop said Smith, who was convicted of rape, was brought to the embassy at around 11 p.m. and is being held at the same facility where he and his three other co-accused US servicemen stayed for the duration of the trial.
Lussenhop admitted there was no court order but maintained the transfer was ‘legal’ as it was in compliance with the terms of the Philippines-US Visiting Forces Agreement (VFA). I can confirm that Lance Cpl. Daniel Smith has been transferred from the Makati City Jail back to US military custody which is consistent with the terms of the VFA as an international agreement that’s binding on both the US and the Philippines, Lussenhop said. The embassy official declined to disclose the government institution that authorized Smith’s release from the Makati City Jail where he has been detained immediately after his conviction early this month. There was an order but I couldn?t comment further. I can’t go into details and which specific government institution, Lussenhop said.
Echoing the statement of the US Embassy, the DFA said the transfer of Smith is in compliance with the Philippine treaty obligations.It does not diminish the gravity of his crime for which he has been convicted under our laws, the DFA said in a statement. US officials gave assurances that Lance Cpl. Daniel Smith would not leave the country at any time pending his appeal. The RP-US VFA is a treaty concurred in by the Senate and has the force and effect of law, it added. But the DFA official said the VFA does not bind the court. The source said the turnover of Smith to US custody is ‘illegal.’ Following separation of powers, only the court has full authority (to release him to US custody). It is clear there is subservience to foreign wilh which is derogatory to Philippine sovereignty and highly embarrassing, the official said.
It is the Supreme Court which is the final arbiter since the case is already in court. The court can demand the return (of Smith) but the reality is, if refused, this can only resort in (the court) citing whoever gave order in contempt and, of course, the President as ultimately responsible, is ground for impeachment, the official added. Zosimo Paredes, Executive Director of the Presidential Commission on the Visiting Forces Agreement (VFACOM), said the transfer was ‘irregular.’ Paredes said his office, which supervises all joint military activities with US troops and monitors their movement under the VFA, was not informed of Smith’s release.
The release of Smith is irregular he said. Only the court can effect his release. Smith is detained because of Judge Pozon’s ruling. Not even the CA can order the Makati City Jail to release him. What the CA can do is to order Pozon to reverse his decision. Even if the motion was filed in the CA, there should be a formal ruling. Lussenhop, meanwhile, denied that Washington resorted to ‘arm-twisting’ to pressure the government to transfer the custody of the 21-year-old Marine to the embassy. I’d reject that. The Philippines always maintains the same interpretation that custody belongs to the embassy, he said. I don’t see that (US intervention). I see the whole issue living up to the bilateral agreement, Lussenhop added. But an unimpeachable Palace source told the Tribune yesterday that the US government put the squeeze on Malaca to free Smith. When the Americans squeeze (Mrs. Arroyo), you sit up, listen and do as asked the source said. Both the US and Philippine governments share the same view that custody of the American soldier should be with the US Embassy as stipulated in the VFA.
The US government has cancelled all joint military exercises with the Philippines after the court refused twice to turn Smith over to US custody. Such move would cost the Philippines millions worth of military aid, including counter-terrorism funding. On Dec. 19, the same day the CA junked a motion for a temporary restraining order on Pozon’s ruling, the Philippines and the US signed another joint agreement reiterating both countries position that custody of Smith belongs to the US government. DFA Secretary Alberto Romulo and US Ambassador to Manila Kenney signed the agreement, the third to be signed by the two countries. The first two agreements signed by Chief State Prosecutor Jovencito Zund Justice Secretary Raul Gonzalez with the US envoy were questioned by the Makati City Regional Trial Court presiding Judge. On Dec. 20, the DFA filed a petition before the CA asking for immediate transfer of Smith to the US Embassy in Manila. Attached in the petition was the signed agreement between Romulo and Kenney.

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