PHILIPPINES: Rapist US Marine’s Custody - Women’s Group Sceptical

• by Stella Gonzales (manila)
• Thursday, February 12, 2009
• Inter Press Service

The court ruled Wednesday that Lance Corporal Daniel Smith should be detained in a facility run by the Philippine government, and not at the U.S. Embassy in Manila where he was being held since his conviction by a lower court in December 2006.

But ‘Gabriela’, the group which has been rallying behind the rape victim, identified in court only as ‘Nicole’, said that it would not be surprising if the government continued to allow special treatment for Smith given its track record on the rape case.

Smith will remain in the custody of the embassy until Philippine government agencies agree on how the case is to be dealt with and at least until all judicial proceedings are completed. Smith’s case is currently on appeal.

Found guilty of raping the Filipina at the former naval base in Subic Bay, northern Philippines, in December 2005, Smith was sentenced to 40 years imprisonment. He was in the Philippines to participate in joint military exercises with local troops.

Gabriela spokesperson Joms Salvador explained that while the SC had ruled that the government should negotiate with U.S. representatives regarding Smith’s custody by Philippine authorities, it also upheld the constitutionality of the Visiting Forces Agreement (VFA) between the two countries.

The VFA governs the conduct of servicemen participating in joint military exercises in the Philippines and includes an article on the detention of U.S. personnel involved in a crime in the Philippines.

The concerned article, which says U.S. personnel are to be detained in facilities agreed upon by Philippine and U.S. authorities, was used by Smith’s lawyers to argue before the lower court that the marine should remain in the custody of U.S. authorities until completion of judicial proceedings.

Philippine foreign affairs and justice officials were in agreement with Smith’s lawyers, but the lower court threw out the petition and ruled that Smith should remain in the local jail until the court ruled otherwise.

While this was happening, the U.S. announced it was cancelling the scheduled military exercises with the Philippines, apparently to put pressure on the government to release Smith to the custody of the embassy.

Days later, Foreign Secretary Alberto Romulo and U.S. Ambassador to the Philippines Kristie Kenney entered into a custodial agreement allowing Smith to be detained at the U.S. Embassy compound in Manila.

When Smith was surreptitiously transferred to the embassy on the night of Dec. 29, 2006, it sparked widespread outrage among various groups, including Gabriela. (The military exercises were held after the U.S. gained custody of Smith.)

Smith is being guarded by American soldiers and is checked upon monthly by a Philippine interior undersecretary, although the official had admitted that there were times when he could not do so because he was busy.

It was that agreement between Romulo and Kenney that the Supreme Court found 'not in accordance with the VFA'. The U.S. embassy said it has brought the matter to its legal experts in Washington, D.C.

'It’s just a one-step victory,' Salvador told IPS. 'We cannot rejoice at the Supreme Court decision because it will be up to the executive branch to negotiate the condition of Smith’s transfer [to Philippine authorities]. The bigger issue here is the legality of the entire VFA. The Philippines is bound by the provisions in the VFA.'

Aside from pushing for women’s rights, Gabriela has also been working against the VFA, saying it undermines Philippine sovereignty.

The Bagong Alyansang Makabayan (New Patriotic Alliance), or Bayan, is wary that negotiations for Smith’s transfer of custody could take a long time and gives too much leeway for diplomatic and political considerations.

'The negotiations will surely take into account unequal relations (between the Philippines and the U.S.), the war games, U.S. aid to the Philippines and so on,' Bayan secretary general Renato Reyes Jr. said. 'What happens if the U.S. government refuses to give up Smith?'

Reyes suspected that negotiations for transfer of Smith’s custody will take into account ‘’the ongoing Balikatan (shoulder-to-shoulder) war games, US aid to the Philippines and so on’’.

Bayan was one of the petitioners that filed the case before the apex court. Another petitioner was the rape victim herself.

Reyes said U.S. President Barack Obama must do the right thing and turn over Smith to Philippine authorities right away, and Philippine President Gloria Arroyo 'should not bungle efforts to get Smith back'.

'She should not use the negotiations as some kind of political leverage in her bid to get Obama's attention,' Reyes said, referring to Arroyo’s several attempts to meet or talk with Obama during the U.S. presidential campaign and after he won the elections. 'The Philippine government should stop acting like a pathetic puppet and start asserting national interest.’’

The Senate President, Juan Ponce Enrile, wants Smith detained with other ordinary convicts at the national penitentiary in Muntinlupa City in Metro Manila. 'If he committed a crime under Philippine law then he must go to [the national penitentiary],' said Enrile, an ally of Arroyo. 'There’s no exception for Mr. Smith.'

But Gabriela’s Salvador is not holding her breath.

She said one reason her group is not too happy with the SC decision is that, in the end, it will all be up to the government to negotiate and decide what will be done with Smith. 'Arroyo has proven that she has no political will to uphold Philippine sovereignty,' Salvador said.

She said it would make no difference to the government whether Smith is held 'in a hotel room with Philippine guards' or in a 'safehouse within Philippine territory and guarded by Filipinos'.

'There could be special treatment [for Smith] even under the custody of the Philippine authorities. It would still be unfair,' Salvador said.

© Inter Press Service (2009) — All Rights ReservedOriginal source: Inter Press Service

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