Us
Mood:  happy

---

2008-03-14

 

Smith asks CA to reverse Pozon ruling


Convicted Lance Corporal Daniel Smith on Thursday filed a petition before the Court of Appeals to reverse the Makati court's ruling denying his motion for transfer to the US embassy, ABS-CBN News reported.

Through his lawyer, the US marine filed the petition before the appellate court and questioned the ruling of Judge Benjamin Pozon of the Makati Regional Trial Court. He said Pozon committed a grave abuse of discretion when the judge insisted on his own interpretation of the Visiting Forces Agreement.

Smith noted that Pozon’s interpretation went against the positions of the Department of Foreign Affairs, Department of Justice and the US government.

"His act of construing the term ‘judicial proceedings’ to exclude the appeals is unwarranted and runs contrary to basic legal tenets," he said in the petition.

Pozon on Wednesday denied the request of the US embassy to take custody of Smith. He ruled that the US marine will remain detained at the Makati City Jail.

The US embassy has cited the VFA provision that states that American servicemen who are accused of crimes in the Philippines shall be detained within US jurisdiction until all legal proceedings have been finalized.

The Philippines and the US both agreed that the latter should have Smith’s custody. The written agreement was presented Friday last week in court.

Pozon, however, questioned the authority of the DOJ to sign the agreement in behalf of the Philippines, adding that only the President or the DFA secretary is permitted to sign along with the US ambassador.

Smith’s camp also argued that Pozon wrongly cited Article 5 paragraph 10 of the VFA as a basis for his decision. The provision states that when the accused has been convicted his detention must be subject to the agreement of the Philippine and the US governments.

Smith said Pozon abused his power when he did not recognize the written agreement between the US embassy and the DOJ, adding that a “grave and irreparable injury” is being committed with his continued detention at the Makati jail.

Smith asked the appellate court to issue a temporary restraining order on Pozon’s decision.

A group of student activists, meanwhile, held a rally in front of DOJ office Thursday for allegedly protecting US interests.

Justice Secretary Raul Gonzalez shrugged off the protest led by Akbayan Youth, noting that the Philippines is now in a bind because the country failed to follow the VFA.

The justice chief said he would defer filing a case against Pozon after the government decided to lodge a petition to intervene before the appellate court.

DOJ eyes intervention in Smith case
Mood:  happy


The Department of Justice will file a petition to intervene in the custody battle over rape convict Lance Corporal Daniel Smith, Secretary Raul Gonzalez said Thursday.

Gonzalez announced the DOJ’s plan as lawyers of Smith filed with the Supreme Court a petition for certiorari seeking the soldier’s return to United States custody.

Explaining the government’s decision, Gonzalez said: "The issue of sovereignty is not an issue here because it has long been resolved by the Supreme Court that the Visiting Forces Agreement [VFA] is valid and legal."

Smith’s counsel, Jose Justiniano, asked the appellate court to issue a temporary restraining order and/or writ of preliminary injunction against Judge Benjamin Pozon of the Makati Regional Trial Court.

Pozon on Wednesday rejected a motion lodged by Smith’s lawyers seeking his return to US embassy custody. He ordered the convict’s continued detention at the Makati City Jail.

VFA provisions

Pozon’s decision said the Visiting Forces Agreement, which governs the conduct of US troops in the country for war games, stipulates that Smith be placed under Philippine jurisdiction after conviction.

The Philippine and American governments believe custody should remain with the US until the judicial process, including appeals, is completed.

Gonzalez has led the charge against Pozon, raising a warning from Sen. Aquilino Pimentel Jr.

The senator said Gonzalez was opening himself up to contempt charges for insulting Pozon, calling him ignorant of the law.

Smith’s lawyer said the American Marine, who faces 40 years in jail for the rape of 23-year-old Nicole, faces grave and irreparable injury from his jail stint.

The petition accused Pozon of committing grave abuse of discretion in rejecting their custody motion.

Smith’s lawyer argued that Article V paragraph 6 of the VFA mandates that Smith should remain under US custody judicial proceedings.

The phrase "judicial proceedings," the petition said, is not limited to the trial court only.

"Respondent judge gravely abused his discretion when he ruled that Article V, paragraph 6 applies only during the judicial proceedings in the trial court and no longer after rendition of judgment," the pleading says.

The petition also alleges that Pozon committed grave abuse of discretion in interpreting that the applicable law with the accused right now is Article V, paragraph 10 of the VFA.

That particular provision, Pozon said "applies after the promulgation of conviction against accused Smith."

The soldier’s petition countered: "The only time that paragraph 10, Article V of the VFA may conceivably apply to pre-final convictions is when the United States authorities choose not to request for the custody of the accusation, a situation that is not obtaining in the case at bar."

Agreement

Pozon also committed grave abuse of discretion in "disregarding the agreements signed by US Ambassador Kenney and Chief State Prosecutor [Jovencito] Zuño and by the same Ambassador and Justice Secretary [Raul] Gonzalez," the petition claimed.

The Smith case before the CA docketed under SP No. 97212 was raffled off with Associate Justice Apolinario Bruselas of the 16th Division, as ponente. The other members who will participate in the deliberations are Associate Justices Josefina Guevarra-Salonga and Vicente Roxas.

In warning off Gonzalez, Pimentel chided the DOJ chief for acting like Pozon was his subordinate.

"If he wants to question Pozon’s decision, he could always elevate the issue to the higher courts," the senator said.

Gonzalez had called Pozon a sympathizer of leftists. But on Thursday, he nixed plans of filing an administrative case against the judge.

The US embassy on Thursday pushed for Philippines’ "compliance" of VFA.

But US embassy spokesman Matthew Lussenhop told The Manila Times in a telephone interview that they have no plans to file charges against Pozon.

"I don’t know about the US charging or anything of that nature [against Pozon]. Our focus is on resolving the issue of custody, and we don’t have any issue or objection to the Judge’s verdict of the case or the concept of the trial," Lussenhop said.

"Our specific concern is that the terms of the VFA are respected by both sides and in order to do that it’s clear the VFA that Smith should be in US custody," he added. With Ilang-Ilang Quijano and Francis Earl Cueto

RP agrees to transfer Smith to US custody
Mood:  bright

Defense lawyers of Lance Corporal Smith on Friday filed before the Makati Regional Trial Court a written agreement between the Philippines and United States officials to transfer him to the custody of the US Embassy.

The formal agreement was submitted at 11 o’clock Friday morning before Presiding Judge Benjamin Pozon.

Among the signatories of the agreement were US Ambassador Kristie Kenney and Philippine Chief Prosecutor Jovencito Zuño.

Judge Pozon questioned Zuño's signature saying that the agreement should have been validated by the Department of Foreign Affairs or the Department of Justice.

Matthew Lussenhop, spokesperson of the US Embassy stated in an ANC interview that Smith is not a private citizen and therefore, he is covered by the Visiting Forces Agreement.

“We’ve looked into the Visiting Forces Agreement and we intend to continue to do so… It is specifically designed to deal with this issue,” Lussenhop stated in an ANC interview.

Prosecution lawyer, Evalyn Ursua however stated that the court has the final say on this case. She is confident that Judge Pozon will maintain his position of detaining Smith at the Makati City Jail.

“The agreement is the position of the current administration and not the government itself… I hope Judge Pozon will stand by his position,” Ursua said.

Smith was convicted of rape on Monday, more than a year after complainant "Nicole" filed the charges. She said that Smith raped her on the night of Nov. 1, 2005 inside the Subic Bay Freeport Zone, a former American naval base in Zambales.

The court ordered that Smith be detained at the Makati City Jail. However, the United States has demanded interim custody of Smith, citing the Visiting Forces Agreement (VFA) between the two countries on the status of US forces in the Philippines.

Under the VFA, US troops accused of crimes in the country should remain in US custody until the end of the legal proceedings. Since Smith’s defense counsel will file an appeal before the Court of Appeals, the case is not considered to be over.

Judge Pozon earlier stated that should the Philippine and US governments arrive at a decision regarding Smith’s custody, he will abide by it.