Art. V, Par. 10 of the VFA provides that:
The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.
According to Gonzalez, Smith may be confined at the Philippine Embassy in Washington, D.C.
“The Philippine embassy in Washington is a Philippine territory,” Gonzalez told reporters. “That is when you speak of Philippine authority or jurisdiction. That’s why embassies have been used for asylum. Some foreigners who ran afoul in their country, they run to their embassies to seek asylum.”
“Kasi (because) when you say Philippine territory or Philippine jurisdiction, it can even be on board a Philippine ship, the Art. 2 of the Revised Penal Code,” he added. “The Philippine jurisdiction includes people on board Philippine ship or airship. Even if the crime is committed in the high seas on board a Philippine ship or airship that is jurisdictional for us.”
But Gonzalez’s statements are “grossly misleading,” according to the NUPL. “Philippine embassies abroad are not ‘prison’ facilities,” the NUPL argued in a statement on Feb. 20.
Ermita, meanwhile, has said that the VFA allows Smith’s continued stay at the US Embassy in Manila while his case is on appeal.
“Presuming that the VFA is constitutional, it does not allow for the custody of Smith in the US embassy,” the NUPL stated. “It is clear under Art. V, (Par.) 10 that the confinement and detention of convicted felons like Smith must be by ‘Philippine authorities’ and not by the United States authorities…”
“Secretary Gonzalez and Secretary Ermita are ‘negotiating’ in favor of the US when they publicly misread Art. V, (Par.) 6 which states that ‘the custody of any United States personnel x x x shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.’ This section only refers to custody before Smith was convicted and not the ‘detention’ of the accused after conviction which is under (Par.) 10,” the NUPL further stated.
“The…position of the Philippine government virtually renders impossible any negotiation considering that both the US and President (Gloria Macapagal-)Arroyo, who has not denied Secretary Ermita’s and Secretary Gonzalez’s statement, now have the same position,” the NUPL stated. “This is in complete disregard of the Supreme Court directive for negotiations with the US government. Considering that the US justification for the unjust delay in the return of Smith was to consult with their legal experts, the Philippine position even preempts the expected findings of these US legal experts, another humiliating sell-out of Philippine interest.”
The NUPL reiterated its demand for the termination of the VFA, arguing that it is an “attack” on Philippine sovereignty and the Filipino people.(Bulatlat.com)