Daniel Smith was tried and convicted by a Philippine court for raping a Filipina in Philippine territory. He actively participated in the trial, and has even appealed his conviction. Like any other convict, Daniel Smith should have been transferred to a Philippine prison. Instead, he was surreptitiously transferred to the U.S. embassy.
There will be more Daniel Smiths for as long as the Visiting Forces Agreement remains in force. To us, the real issue here is not the proper interpretation of the VFA but the validity and wisdom of the VFA itself. The case of Daniel Smith shows us exactly why the VFA should be terminated immediately.
The VFA is not a treaty. No less than Chief Justice Reynato S. Puno of the Supreme Court, in his dissenting opinion in Bayan v. Executive Secretary (G.R. Nos. 138570, 138572, 138587, 138680 & 138698, 10 October 2000), has said so:
"In conclusion,…I respectfully submit that the Court will be standing on unstable ground if it places a sole executive agreement like the VFA on the same constitutional plateau as a treaty. Questions remain and debate continues on the constitutional basis as well as the legal effects of sole executive agreements under U.S. law. Xxx
With the cloud of uncertainty still hanging on the exact legal force of sole executive agreements under the U.S. constitutional law, this Court must strike a blow for the sovereignty of our country by drawing a bright line between the dignity and status of a treaty in contrast with a sole executive agreement. However we may wish it, the VFA, as a sole executive agreement, cannot climb to the same lofty height that the dignity of a treaty can reach. Consequently, it falls short of the requirement set by Sec. 25, Art. XVIII of the 1987 Constitution that the agreement allowing the presence of foreign military troops on Philippine soil must be "recognized as a treaty by the other contracting state."
I vote to grant the petitions." (Dissenting opinion, pp. 30-31)
The VFA is unconstitutional. The Constitution mandates that only a treaty can allow the presence of foreign military bases, troops or facilities in the Philippines, and that the treaty should also be "recognized as a treaty by the other contracting party" (Sec. 25, Art. XVIII). This provision was included in the 1987 Constitution to prevent the same kind of disparity that existed when the 1947 Military Bases Agreement was still in effect.
"MR. OPLE. xxx…xxx [W]e have acknowledged starting at the committee level that the bases agreement was ratified by our Senate; it is a treaty under Philippine law. But as far as the Americans are concerned, the Senate never took cognizance of this, and therefore, it is an executive agreement. That creates a wholly unacceptable asymmetry between the two countries. Therefore, in my opinion, the right step to take…is that we must begin with a clean slate; we should not be burdened with the flaws of the 1947 Military Bases Agreement.
XXX
FR. BERNAS. When I say that the other contracting state must recognize it as a treaty, by that I mean it must perform all the acts required for the agreement to reach the status of a treaty under their jurisdiction."
—1986 Constitutional Deliberations (Record, pp. 780-783)
The VFA is one-sided. Daniel Smith was found guilty by a Philippine court of raping a Filipina on Philippine soil. He was duly charged, arraigned, tried and convicted, and has now appealed his conviction. Like anyone else convicted of raping a Filipina in Philippine territory, Daniel Smith should have been transferred to a Philippine prison. Instead, he is in the custody of the United States, in the U.S. Embassy, on U.S. territory.
Would a Filipino soldier convicted for the same offense in the United States be given the same treatment?
Terminate the VFA now.
Quezon City, 4 January 2007.
(sgd) (sgd)JOSE MANUEL I. DIOKNO ZENEIDA QUEZON-AVANCEÑA
Chair Chair
Free Legal Assistance Group The Jose W. Diokno Foundation, Inc.
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