By Fr. Ranhilio Callangan Aquino

One lawyer exclaimed: ?I do not see any argument for the proposition that Daniel Smith should not be in Muntinlupa.? Attorney, to see the argument, please read the Visiting Forces Agreement as passed upon by the Supreme Court in the very recent case of Nicolas v. Romulo. No matter how you feel about the VFA, no matter that you may hysterically scream your objection to it, it is a binding international agreement, and pacta sunt servanda?agreements must be observed!

Daniel Smith was convicted of rape but has appealed his conviction before the Court of Appeals. As a general rule, after conviction, bail is a matter of judicial discretion and there have been some cases where the accused has been allowed to post bail after conviction for rape. Smith is not out on bail. Smith has been kept within the diplomatic premises of the United States mission to the Philippines subject to a 2006 agreement between Secretary Alberto Romulo and Ambassador Kristine Kenney. According to the terms of this agreement, Smith was to be returned to US military custody at the US Embassy in Manila. The United States could have easily flown him out of the country; we would have protested?but after paroxysms about sovereignty and imperialism would have run their course, we would have been quite unable to do anything more about it. Suing the US before the International Court of Justice for breach of the VFA would then have been a theoretical possibility, but a highly improbable one. I am not saying that the US has done us a favor, but for one thing, it has kept its part of the bargain by keeping Smith confined to the US Embassy.

Article V of the Visiting Forces Agreement provides that ?the custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.? Bayan and other petitioners, including Nicolas, the supposedly aggrieved party, had asked the Supreme Court to declare this provision unconstitutional for violating the equal protection clause of the Constitution. Why should the rule for US military servicemen be different from that for Filipinos accused before our courts? The Supreme Court?s answer was curt?but correct: Precisely because they are foreign servicemen! The Court then enunciates?not creates?a doctrine in international law: The receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties. No matter then that many would have foreign military servicemen subject to the self-same rules as are all respondents and accused in criminal proceedings in this jurisdiction, that is not what international law prescribes.

Acutely, the Court finds that the VFA distinguishes between ?custody? and ?detention?. As to the latter, it finds Section 10 of Article V to provide for it: ?Confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities.?

So why should Daniel Smith not be in Muntinlupa? Because we have agreed?in the exercise of our sovereignty?with the United States that the detention of US servicemen shall be ?by Philippine authorities? ?in facilities agreed on by appropriate Philippines and United States authorities??and the New Bilibid Prisons has never been agreed on by Philippine and American authorities as the detention center for Smith. The argument is not complex. It is a simple application of the provisions of an international agreement. It becomes complex only if you pander to the clamor of the riotous mob and to the sentiments of those who go by nothing more than sentiment. But is that not why so much is academically demanded of a lawyer or a professor of the law so that she can think with the lucidity of a scientist of the law and capable of arriving at jurisprudential (the ?prudence? of the law) judgments?

The lawyer goes on to rant: Ito?y dapat gawin sa loob ng 24 oras! Where did she get that? In fact, the dispositive portion of the Supreme Court?s judgment runs smack in her face! ?The Romulo-Kenney Agreements of Dec. 19 and 22, 2006 are declared not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art. V Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court.? Is it not part of the sworn duty of a lawyer to educate the public?rather than to mislead it?in the ways of the law?

All this talk about a violation of our sovereignty, a slap on our national dignity is not worthy of us, supposedly intelligent people. Forging an international agreement is an act de jure imperii, the act of a sovereign power in its sovereign capacity! What would be undignified would be reneging on agreements.

So where does Daniel Smith go? For the moment, until an agreement is reached, he remains where he is?at the US Embassy. This is the status quo that the Court orders until further orders from it. And where, finally, shall he be detained? Would the Manila Hotel be a possible detention center? Yes, provided the detention is carried out by Philippine authorities and agreed on by the state-parties to the agreement.

Why have I once more chosen to articulate an unpopular position? I have one very simple reason: to contribute to the education of the public on the reality of international law. There is such a thing as international law, and it behooves each nation to contribute to strengthening of its institutions. The principal operators of international law are domestic operators. It is because of international law that we have had to amend domestic legislation to meet international legal standards: the protection of the rights of the child, the law against trafficking in persons, the comprehensive statute on prohibited drugs and substances, the law protecting women and their children?these, to name a few, owe their origin to international law.

I am not too sure Smith is guilty. Obviously, that the Court of Appeals has allowed his appeal due course although it still has to render judgment means that entertaining doubts as to the judgment of conviction is not at all unreasonable. But the present issue of where he should be detained transcends Smith and Nicolas. It has to do with the respect we ought to have for international law, as well as the fact that the international legal order?and the advantage of having an international legal order rather than having none at all?depends ponderously on observance of that elementary precept: Agreements shall be observed.

rannie_aquino@rannieaquino.com