Smith v. Pozon orig draft

7/29/2019 Smith v. Pozon orig draft

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Republic of the Philippines

Manila

SPECIAL SIXTEENTH DIVISION

Lance Corporal DANIELJ. SMITH CA- G.R. SP No. 97212

Petitioner,

- versus - Members:

GUEVARA-SALONGA,HON. BENJAMIN T. POZON, Chairin his capacity as Presiding Judge LAMPAS-PERALTA*,of RTC, Makati, Br. 139,JAIL and

WARDEN of the Makati City Jail, BRUSELAS, JR.,JJ.And PEOPLE OFTHE PHILIPPINES

Respondents. Promulgated:_____________________

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

R E S O L U T I O N1

Bruselas, Jr., J.:

Article II Respect for Law

It is the duty of the United States personnel to respect the laws ofthe Republic of the Philippines and to abstain from any activityinconsistent with the spirit of this agreement, xxx xxx xxx. TheGovernment of the United States shall take all measures within itsauthority to ensure that this is done.2

*Vice J.Vicente Q. Roxas.1

The 10-day period within which Comments are to be filed having expired, the Court maynow resolve the petition.2 Second article of the nine-articled Agreement Between the Government of the UnitedStates of America and the Government of the Republic of the Philippines Regarding theTreatment of United States Armed Forces Visiting the Philippines signed 10 February 1998by Secretary Domingo L. Siazon, Jr. and Ambassador Thomas C. Hubbard, in Manila; morepopularly known as the Visiting Forces Agreement or simply VFA.


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Assailed by the petitioner, Lance Corporal Daniel J. Smith

(hereafter the petitioner), in this petition for certiorari3 are the acts

of the public respondent Judge Benjamin T. Pozon (respondentjudge) who directed his confinement, refused recall thereof,

denied the entreaties of the public prosecution that took the side

of the petitioner on the issue of custody, and allowed the private

prosecution to be heard on the same incident of custody.

At the core of the controversy is the basic question of who

gets to keep a person who has been charged, tried and convictedof committing a crime, or stated differently, who should punish

persons who commit crimes in a given territory.

A quick answer to the core postulation above would be,

the authorities in the place were the crime was committed. This is

not exactly a wrong answer. It is a good answer, all things being

equal. It is, in fact, the acceptable, standard and correct answer. Itis a product of logical reasoning that arises out of mans long

history of civilized living and acquaintance with organized

society. It is rooted in notions of sovereignty and territorial

supremacy. Sovereign states are agreed that they have general

competence to punish persons for offenses committed within their

territory, regardless of the offenders nationality. This ability is

founded on the obligation of governments to maintain peace andorder in its domain and on its duty to defend the State from such

acts that would disrupt its security and tranquility. This

conceptualization is known as the territorial principle in

international law.4

Petitioner, however, would have none of these because, he

says, the Visiting Forces Agreement (VFA) provides that his

custody resides in the U.S. authorities. He pointed to paragraph 6,3 A special civil action (interlocutory in nature) under Rule 65 of the 1997 Rules of CivilProcedure, as amended.4 International Law used to be popularly known as the law of nations, corresponding tothe Romanjus gentium.


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Article V of the VFA. The respondent judge did not agree with

him. When the public prosecution5 manifested that it shared the

view of the petitioner, still respondent judge did not budgebecause he said, paragraph 10, Article V of the same VFA does

not support the view of the petitioner; that the Secretary of Justice

is not an authorized party to bind the Philippines in an agreement

with U.S. authorities; that the agreement itself is not the

agreement contemplated in paragraph 10.

Very briefly, the petitioner6

is an element of the USMilitary that visits the country from time to time. He was

charged, tried and convicted for the crime of rape7 that he

committed, while on liberty8 on 01 November 2005, in Olongapo

City, against a 22-year old lass, Nicole.9 He was sentenced to

reclusion perpetua.10 Upon the promulgation of judgment against

him on 04 December 2006, respondent judge also ordered his

temporary commitment to the Makati City Jail (MCJ) pending theagreement between appropriate Philippine and United States

authorities whereat the confinement is to be carried out pursuant

to the Visiting Forces Agreement.

The order that directed confinement reads thus:Pursuant to Article V, paragraph No. 10, of the Visiting Forces

Agreement entered into by the Philippines and the United States,accused L/CPL. DANIEL J. SMITH shall serve his sentence in thefacilities that shall, hereafter, be agreed upon by appropriatePhilippine and United States authorities. Pending agreement on suchfacilities, accused L/CPL. DANIEL J. SMITH is hereby temporarilycommitted to the Makati City Jail.

An order of commitment was thereafter issued and immediately

implemented.

5

Represented by the team of state prosecutors under Chief Prosecutor Jovencito Zuno.6 Lance Corporal in the United States Marine Corps (USMC).7 Defined and penalized by articles 266-A and 266-B of the Revised Penal Code, as amended.8 Not on duty; while on rest and recreation.9 An alias pursuant to Sec. 44 of Republic Act No. 9262 (VAWC Law) which prohibitspublication/identification of women and children victims of violent crimes.10 A penalty with a duration up to forty years (range, 20 yrs and 1 day to 40 yrs).


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On 05 December 2006, the petitioner filed with the Regional

Trial Court (RTC) an urgent motion for reconsideration with

prayer for issuance of stay order, which prayed for, among others,the reversal of the foregoing portion of the respondent judges

decision insofar as it directs the temporary commitment of the

petitioner to the MCJ and the recall of the order of commitment.

The private prosecution (private offended party and counsel)

opposed said urgent motion.

On 08 December 2006, the petitioner filed a manifestation,with an attached copy of an agreement, signed by Ambassador

Kristie Kenney11 (representing the United States of America) and

Chief State Prosecutor Jovencito Zuo12 (representing the

Philippines), to the effect that the petitioner be returned to the U.S.

military custody at the U.S. Embassy in Manila. In the afternoon of

the same date, another agreement of the same tenor was

submitted to the respondent judge, this time signed by SecretaryRaul Gonzalez13 and Ambassador Kristie Kenney. The agreement

reads:

The Government of the Republic of the Philippines and theGovernment of the United States of America agree that, inaccordance with the Visiting Forces Agreement signed betweenour two nations, Lance Corporal Daniel J. Smith, U.S. MarineCorps, be returned to U.S. military custody at the U.S.

Embassy in Manila.

A supplemental opposition to the urgent motion and

comment to the manifestation of the petitioner was filed by the

private prosecution, followed by their memorandum of

authorities. The petitioner likewise filed another manifestation.

11 United States Ambassador to the Philippines.12 Prosecution Division, Department of Justice (DOJ).13 Chief, DOJ.


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After hearing the incident and taking into consideration the

submissions of the opposing sides, on 12 December 2006, the

respondent judge denied the urgent motion via the hereinassailed order.

Unsatisfied with the turn of events, petitioner came to us for

special relief via the instant certiorari ascribing to the respondent

judgegrave abuse of discretion in issuing the confinement order and

in refusing to recall it. He also filed a notice of appeal to have the

judgment against him reviewed. We hasten to add that we areconcerned here merely with the certiorari petition, not with the

appeal.

The petition for certiorari14 is available when any tribunal, board

or officer exercising judicial or quasi-judicial functions has acted

without or in excess of its or his jurisdiction, or with grave abuse

of discretion amounting to lack or excess of jurisdiction, and there

is no appeal, nor any plain, speedy, and adequate remedy in theordinary course of law. Being a special civil action, it may not be

invoked generally and its being given due course depends on

preliminary compliance with the requirements therefore. These

essential requirements are:

1. The assailed act issues from a tribunal, board orofficer that performs judicial or quasi-judicial

functions;2. The tribunal, board or officer has acted without

or in excess of its jurisdiction or, has acted withgrave abuse of discretion which amounts to lackor excess of jurisdiction;

14 Section 1, Rule 65, 1997 Rules of Civil Procedure as amended, which reads: When anytribunal, board or officer exercising judicial or quasi-judicial functions has acted without orin excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack of orexcess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in

the ordinary course of law, a person aggrieved thereby may file a verified petition in theproper court, alleging the facts with certainty and praying that judgment be renderedannulling or modifying the proceedings of such tribunal, board or officer, and granting suchincidental reliefs as law and justice may require. The petition shall be accompanied by acertified true copy of the judgment, order or resolution subject thereof, copies of allpleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.


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3. Appeal as a relief is not available; and4. There is no other plain, speedy and adequate

remedy in the ordinary course of law.

All these elements must obtain concurrently for the special civil

action of certiorari to prosper. Thus, if the tribunal, board or officer

concerned exercises neither judicial nor quasi-judicial functions,

but ministerial or administrative ones, even if there be excess of

jurisdiction or grave abuse of discretion, certiorari will not be

available. If there be excess of jurisdiction or grave abuse of

discretion by a tribunal, board or officer exercising judicial orquasi-judicial functions but appeal is available, certiorari still may

not be invoked. Where there is excess of jurisdiction or grave

abuse of discretion by a tribunal, board or officer exercising

judicial or quasi-judicial functions and appeal is not available but

another plain, speedy and adequate remedy is generally

obtainable, certiorari may still not be resorted to. The remedy to

obtain reversal or modification of the judgment on the merits ofthe case is appeal.15 Also, certiorari is not and cannot be made a

substitute for an appeal16 where the latter remedy is available but

was lost or not availed of. In fine, the remedies of appeal and

certiorari are mutually exclusive, not alternative or successive.17

The facts before us reveal that the petitioner has been tried

for the crime of rape and has been convicted and sentencedaccording to applicable Philippine municipal laws18. The remedy

of appeal is available as in fact he has availed of such a remedy.

Appeal, as a relief from an adverse decision being available to

him, he may not successfully invoke certiorari. True, he has

alleged grave abuse of discretion on the part of the trial judge, an

officer who exercises judicial functions, but such an allegation

must be coupled with an absence of appeal, or any other plain,15 Bugarin, et. al. vs. Palisoc, et. al., G.R. No. 157985, December 2, 200516Supra.17 David vs. Cordova, G.R No. 152992, July 28, 200518 Act No. 3815, The Revised Penal Code as amended; December 2000 Rules of CriminalProcedure


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speedy, and adequate remedy in the ordinary course of law. His

plaint now before us can very well be assigned as an error on

appeal. Thus, on a technical ground, petitioners resort tocertiorari may be simply denied for non-compliance with the

requirements of the rules. But, we go further in view of the far-

reaching consequences of the core issue vis--vis the VFA that has

been brought to the fore.

There is no dispute here that the respondent judge had

plenary jurisdiction to hear and decide the criminal action of rapeagainst the petitioner. The only concern that had been raised is

the respondent judges having issued a commitment order. The

petitioner asserts that this act of the judge constituted a grave

abuse of discretion that amounted to lack or excess of jurisdiction. His

thesis is that the VFA calls for his remaining in the custody of the

U.S. authorities; that is; in the U.S. Embassy premises. Because,

the judge did not agree with him, he asserts that the judge gravelyabused his discretion.

Grave abuse of discretion has been traditionally and

consistently defined as an act that is arbitrary, capricious and

whimsical. Of late it had been expanded to include such

situations as may be contrary to the constitution, the law or

jurisprudence. In the case now before us, we note that therespondent judge heard the petitioner on his proposition. He also

heard the prosecution, both public and private, on the issue of

custody. It was only after hearing them that the respondent judge

maintained his original order of commitment. Under our criminal

law and procedure, a judgment of conviction that imposes the

penalty of imprisonment above 6 years is immediately followed

by an order of commitment to the appropriate detention facility;

bail if previously given, is automatically canceled to ensure the

physical availability of the accused to serve his sentence in the

event of final conviction. His status changes from an accused to a


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convict, albeit with a pending appeal. In the case of the petitioner

herein, the sentence is reclusion perpetua, a maximum penalty that

may be imposed by the courts.19

Given the foregoing behavior ofthe respondent judge, we cannot say easily that the issuance of

the questioned orders had been attended by fancy, whim, caprice

or arbitrariness.

We also do not see any clear inconsistency or lack of

conformity of the questioned orders to a provision of the

constitution, law or statute. Neither do we see a clear disregard ofany settled jurisprudence that bears on the issue. The petitioner

could not point to one except that he insists that under the VFA,

he must be in the custody of the United States authorities while

his appeal is pending. His plain understanding of the VFA

provisions appears to be shared by no less than the prosecution

arm of the government headed by Chief Zuno and Secretary

Gonzalez. Under the theory of incorporation, the VFA is deemedpart of the laws of the land.20 Unlike the provisions of the U.S.

Philippines Military Bases Agreement of 194721, wherein there is a

limited waiver of jurisdiction, the present VFA does not provide

for any waiver of jurisdiction. In fact, it expressly acknowledges

jurisdiction in Philippine authorities in keeping with the

territorial principle in international law as well as with the

generality and territoriality principles in penal law.

The VFA is an agreement between the Government of the

Republic of the Philippines (GRP) and the Government of the

United States of America (GUSA) regarding the treatment of

United States Armed Forces visiting the Philippines. It consists of

nine (9) Articles22 with its Article V dealing with criminal

19

Another one being life imprisonment; death as a penalty had been abolished.20 Article 2, Revised Penal Code (Act No. 3815, as amended); Article 14, New Civil Code(Republic Act No. 386, as amended).21 No longer in force. But, Philippines U.S. Mutual Defense Treaty is still in effect.22 Article I Definitions, II - Respect for Law, III Entry and Departure, IV Driving andVehicle Registration, V Criminal Jurisdiction, VI Claims, VII Importation andExportation, VIII Movement of Vessels and Aircraft, and IX Duration and Termination.


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jurisdiction over United States personnel with respect to offenses

committed within the Philippines. The Supreme Court has

determined it to be a valid agreement and may be considered atreaty pursuant to the ponencia in the Bayan cases.23 Its validity is

not an issue before the Court now.

The VFA is not about protecting soldiers from any harm. It

is all about containing and restraining visiting soldiers from

causing damage and injury to the host country. The proposition

that the VFA is some kind of a shield, a legal one it is quicklyargued, against any harm from the locality, is a contradiction in

terms. The soldier protects the people and needs no protection

from the people.24 The visiting soldier is in reality a lethal

weapon, not much different from men-of-war25 that make friendly

port calls on other sovereign states. It is in fact the people and the

host sovereign state that need some protection from visiting

soldiers from another sovereign state. This truism is temperedand tamed via the mutuality of the Visiting Forces Agreement. If

there are any doubts about this conceptualization, one need only

take a quick look at the epigram above which we excerpted from

Article II of the VFA. The VFA is all about how visiting soldiers

are to be treated, how they are to behave from arrival up to their

departure from the host country. It is not about a legal shield that

protects a soldier who misbehaves and transgresses the municipallaws of a host sovereign state.

The petitioners main thesis is that under Article V,

paragraph 6 of the VFA, he must remain in the custody of U.S.

authorities from the commission of the offense until completion of

all judicial proceedings and that he should be immediately

removed from the MCJ to the U.S. Embassy. He understands

23Bayan, et. al. v. Executive Secretary Zamora & companion cases, G.R.No.13850, 10 October2000.24 See Section 3, Article II of the 1987 Philippine Consitution. xxx The Armed forces of thePhilippines is the protector of the people and the State xxx.25 As opposed to merchant men


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judicial proceedings to mean a general term for proceedings relating

to, practiced in, or proceeding from, a court of justice and that in

his case, judicial proceedings would necessarily encompass allproceedings conducted in Philippine courts of justice, including

the appeals process up to final termination; that, since his

conviction is on appeal, he should stay in the custody of the U.S.

authorities. He asserts that paragraph 6, Article V of the VFA is

very clear and unequivocal on custody, leaving no room for

interpretation. Thus, he alleged, that the respondent judge: (1)

gravely abused his discretion when he ruled that paragraph 6 ofArticle V, applies only during the judicial proceedings in the trial

court and no longer after rendition of judgment; (2) committed

grave abuse of discretion in ruling that paragraph 10, Article V

applies after the promulgation of judgment; (3) assuming that

Article V, paragraph 10 was correctly applied, nonetheless acted

without jurisdiction and with grave abuse of discretion when he

ordered petitioners temporary commitment to the MCJ; (4)committed grave abuse of discretion in disregarding the

agreements signed by Ambassador Kenny and Chief Zuno, and

by the same Ambassador and Secretary Gonzalez; and (5)

committed grave abuse of discretion in recognizing that the

private complainant in criminal case no. 06-65126 has standing to

file her Opposition to the Motion for Reconsideration, the

Supplemental Opposition to the Motion for Reconsideration, theComment to Manifestation.

To determine whether or not grave abuse of discretion

attended the exercise by respondent judge of his judicial functions

per specifications (1), (2) and (3) above, we need only examine

the provisions of the VFA, with particular focus on Article V,

which deals with criminal jurisdiction.

26 The criminal action below wherein the petitioner and other co-accused were tried.


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Paragraph 6 is not the only provision in the VFA that has to

do with custody. It is only one part of an eleven-paragraphed

Article V that deals with criminal procedure; that is; the steps tobe followed when offenses are committed by visiting U.S.

soldiers. Article V, in fact is captioned Criminal Jurisdiction, not

custody. Paragraph 10, cited by the respondent judge, is also in

Article V. Let us look at it briefly at this point and keep it in mind

as a ready reference:

Paragraph 10 The confinement or detention by Philippineauthorities of United States personnel shall be carried out infacilities agreed on by appropriate Philippine and United Statesauthorities. United States personnel serving sentences in thePhilippines shall have the right to visits and materialassistance. (Underscoring supplied)

Scholars, law practitioners and even fledgling paralegals

know that in criminal law, jurisdiction necessarily includes

custody. Criminal jurisdiction means jurisdiction over the placeof commission of the offense, jurisdiction over the offense itself,

and jurisdiction over the person who commits the offense (the

malefactor). Criminal jurisdiction over the person of the

malefactor is obtained by his arrest or by taking him into custody.

It can also be acquired by the surrender of the malefactor and by

his submission to criminal processes. As criminal law concepts,

custody and jurisdiction go hand-in-hand. Where there isjurisdiction, there is also custody; custody inheres in

jurisdiction. This basic concept, that custody is an essential

part of jurisdiction, permeates article V of the VFA.

The first three paragraphs of Article V delineate the

respective exclusive and concurrent jurisdictions of the GRP and

GUSA. Paragraph 4, pertains to the arrest (taking into custody) ofU.S personnel and handover (turnover of custody) to the

authorities who are to exercise jurisdiction; Paragraph 5, on

prompt notification by both U.S. military and Philippine


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authorities in case of arrest; Paragraph 6, deals with multiple

matters: custody upon request; production of U.S. personnel for

investigative or judicial proceedings; extraordinary casesregarding custody; termination of obligations in case judicial

proceedings are not terminated within one year; periods

deducted from the one-year time line; Paragraph 7, on assistance

to investigations, attendance of witnesses; Paragraph 8, anent the

double jeopardy rule and exclusions to it; Paragraph 9, deals with

rights accorded to U.S. personnel detained, taken into custody, or

prosecuted by Philippine authorities; Paragraph 10, concernsconfinement or detention by Philippine authorities; and

Paragraph 11, on non-subjection to trial by Philippine military or

religious courts.

While a total of eleven (11) paragraphs comprise Article V

(on criminal jurisdiction), the petitioner relied solely on

paragraph 6 to support his thesis. He utilized amplification andjuxtaposition27 to support his position. He placed the first

sentence of the lengthy, multi-subject paragraph 6 alongside the

concise, two-sentenced paragraph 10 to dramatize his point. But,

what do the provisions of Article V say about jurisdiction and

custody?

Paragraph 1 (a) Philippine authorities shall have

jurisdiction over United States personnel with respect tooffenses committed within the Philippines and punishableunder the laws of the Philippines. (underscoring supplied)

Paragraph 2 (a) Philippine authorities exerciseexclusive jurisdiction over United States personnel with respectto offenses, including offenses relating to the security of thePhilippines, punishable under the laws of the Philippines, butnot under the laws of the United States. (underscoringsupplied)

Paragraph 3 (a) Philippine authorities shall have theprimary right to exercise jurisdiction over all offensescommitted by United States personnel, except in cases

27 Tabular juxtaposition, page 10, Petition for Certiorari.


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provided for in paragraphs 1 (b), 2 (b), and 3 (b) of this article.(underscoring supplied)

Paragraph 1 (b) pertains to the exercise within the

Philippines by U.S. authorities of criminal and disciplinary

jurisdiction conferred by U.S. military law over U.S. personnel;

paragraph 2 (b), to exclusive jurisdiction by U.S. authorities over

U.S. personnel with respect to offenses, including offenses

relating to the security of the United States, punishable under U.S.

laws, but not under Philippine laws, and paragraph 3 (b), to the

primary right to exercise jurisdiction by U.S. authorities over U.S.

personnel subject to U.S. military law in relation to offenses solely

against property or security of the United States or offenses solely

against the property or person of U.S. personnel, and offenses that

arise out of an act or omission done in the performance of duty.

Given the provisions of paragraphs 1, 2 and 3, there can be

no quibbling that Philippine authorities exercise exclusive

jurisdiction over the person of the petitioner (paragraphs 2{a},

1{a}) and have primary right to exercise jurisdiction over the

offense that he committed (paragraph 3{a}). The offense of rape is

a felony under Philippine municipal law28; it was committed

within Philippine territory, against a non-U.S. personnel. It is a

clear case of exclusive jurisdiction over the person of the offender

with respect to the offense that he has committed and primary

right to try him for the offense. Jurisdiction over the person

plainly means custody. If Philippine authorities have exclusive

custody, why then the claim of the petitioner? Yes, because of

paragraph 6, so he says.

But let us first take a look at paragraph 4. It provides -

Within the scope of their legal competence, theauthorities of the Philippines and the United States shall assisteach other in the arrest of United States personnel in the

28 Defined and penalized under Articles 266-A and 266-B of the Revised Penal Code, asamended.


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Philippines and in handing them over to the authorities whoare to exercise jurisdiction in accordance with the provisions ofthis article. (underscoring supplied)

As we have shown earlier, it is the Philippine authorities

that have exclusive jurisdiction over the person of the petitioner

(paragraphs 2 {a} and 1 {a}) and the primary right to try him for

the offense that he committed (paragraph 3{a}). Note that per

paragraph 4, the U.S. personnel who commit an offense shall be

arrested and handed over to the authorities that are to exercise

jurisdiction. In the case before us therefore, the petitioner shouldhave been handed over to the Philippine authorities. But, did this

take place? Was this provision of paragraph 4 enforced?

Apparently not, and this we see through U.S. Embassy Note

No. 0060, dated 16 January 2006, which reads:

The Embassy of the United States of America presentsits compliments to the Department of Foreign Affairs of theRepublic of the Philippines, and, in response to theDepartments Note No. 05-2662 of November 16, 2005, has thehonor to convey, having taken full account of the position ofthe Government of the Philippines regarding custody, the U.S.Government shall continue to exercise custody untilcompletion of all judicial proceedings, as provided for byArticle V, paragraph 6 of the Visiting Forces Agreement.

The Embassy of the United States of America avails itselfof this opportunity to renew to the Department of Foreign

Affairs of the Republic of the Philippines the assurances of itshighest consideration.

Such was the response29 of the U.S. authorities to the

Department of Foreign Affairs (DFA) Note No. 05-2662, dated 16

November 2005. This DFA Note Verbale invoked the procedure

laid out by Article V that called for custody by Philippine

authorities. It reads:

The Department of Foreign Affairs presents itscompliments to the Embassy of the United States of America

29The response came a full two (2) months after a 2nd follow-up note from a U.S. Embassythat was only about two clicks away from the Philippine Department of Foreign Affairs.


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and has the honor to refer to Article V of the Agreementbetween the Republic of the Philippines and the United Statesof America Regarding the Treatment of United States Armed

Forces Personnel Visiting the Philippines (the Agreement), inrelation to the conduct of investigations of the alleged rape thatoccurred in Subic on November 1, 2005.

Pursuant to the exercise by the Philippines of its primaryright of jurisdiction over the case as conveyed through thisDepartments Note Verbale No. 05-2579 and in view of the non-receipt of a formal request for initial United States custody overthe United States military personnel involved in the allegedrape relative to Article V, paragraph 6 of the Agreement andthe extraordinary nature of the case, being a heinous crime, theDepartment requests the Embassy of the United States of

America to turn over custody of said U.S. military personnel toPhilippine authorities as soon as practicable.

Mindful of Article V, paragraph 10 of the Agreementwhich states that the confinement or detention by Philippineauthorities of the U.S. military personnel shall be carried out infacilities agreed on by appropriate Philippine and United Statesauthorities, this Department and the Department of Justice lookforward to discussions with the Embassy on arrangements onsaid confinement or detention.

The Department of Foreign Affairs avails itself of this

opportunity to renew to the Embassy of the United States ofAmerica the assurances of its highest consideration.

While paragraph 4 clearly and unequivocally called for the

arrest and handing over of the offending U.S. personnel to the

authorities who are to exercise jurisdiction, in this case the

Philippine authorities, the U.S. Embassy chose not to respond to

the DFAs Note Verbale No. 05-2579. It responded only belatedly

after a follow up in Department Note No. 05-2662, and only to

focus on paragraph 6. Thus, in a more emphatic language, DFA

replied immediately via Department Note No. 06-010330 and

stated as follows:

The Department of Foreign Affairs presents itscompliments to the Embassy of the United States of Americaand, with reference to the Embassys Note No. 0060 dated 16

January 2006, has the honor to reiterate the position of thePhilippine Government as conveyed through the DepartmentsNote No. 05-2662 dated 16 November 2005 as follows:

30 Dated 17 January 2006, just the next day after its receipt of U.S. Embassy Note No.0060.


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Pursuant to the exercise by the Philippines of itsprimary right of jurisdiction over the case as conveyed throughthis Departments Note Verbale No. 05-2579 and in view of the

non-receipt of a formal request for initial United States custodyover the United States military personnel involved in thealleged rape relative to Article V, paragraph 6 of theAgreement and the extraordinary nature of the case, being aheinous crime, the Department requests the Embassy of theUnited States of America to turn over custody of said U.S.military personnel to Philippine authorities as soon aspracticable.

On the specific issue of what constitutes anextraordinary case in the context of Article V, Paragraph 6 ofthe Agreement, the Department wishes to convey that by any

precepts of civilized society, rape, particularly under thecircumstances as alleged in the Subic case, cannot beconsidered as simply an ordinary case and should by law, bypolicy and by good conscience, be properly understood as anextraordinary case, as was the intent that governed when thePhilippines agreed to the inclusion of this formulation in theAgreement. This intent was further amplified in PhilippineSenate Concurrence Resolution No.18, Series of 1999.

In addition, while aware of the differences between theAgreement and similar agreements entered into by the United

States, the Philippine Government is seriously concerned overthe patent disparity in the treatment of U.S. military personnelin other countries on the issue of custody in criminal cases.

In the light of the decision of the United StatesGovernment to maintain its position on the issue of custodyduring trial, the Department of Foreign Affairs wishes tocontinue discussions on this matter between the PhilippineGovernment and the United States Government.

The Department of Foreign Affairs avails itself of thisopportunity to renew to the Embassy of the United States

assurances of its highest consideration.

The foregoing diplomatic exchange would thus show that

the Philippine authorities, did not share the views of the U.S.

Embassy as well as the petitioner regarding custody, except only

until lately; that is; after the respondent judge adjudged the

petitioner guilty of committing rape beyond reasonable doubt

and directed his temporary confinement in the MCJ. It is

significant to note here that as early as 16 January 2006, the U.S.

authorities were already mulling over the paragraph 6, Article V

of the VFA argument; something that the petitioner had not


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indicated any awareness of then. He was just being a good soldier

in the custody of the U.S. Embassy. It was only on 05 December

2006, a day after judgment day, that he cried, violation ofparagraph 6, Article V of the VFA!

This early warning about the different reading being given

Article V by the U.S. authorities may well have served as a

wellspring in the development of a sustained and unified

diplomatic initiative to secure agreed-on anchor points along the

hazy, ambiguous portions of the VFA, in anticipation ofalternative post-trial scenarios. This we say because, the facts that

have been laid bare, show the DFA boys to have been on track

early on, except that the DOJ guys and some others may have

gotten into the act in a syncopated way.

Let us also take a look at paragraph 9 which provides:

Paragraph 9 - When United States personnel aredetained, taken into custody or prosecuted by Philippineauthorities

, they shall be accorded all procedural safeguardsestablished by the law of the Philippines. At the minimum,United States personnel shall be entitled:

(a) To a prompt and speedy trial;(b) To be informed in advance of trial of the specificcharge or charges made against them and to havereasonable to prepare a defense;(c) To be confronted with witnesses against them and to

cross-examine such witnesses;(d) To present evidence in their defense and to havecompulsory process for obtaining witnesses;(e) To have free and assisted legal representation of theirown choice on the same basis as nationals of thePhilippines;(f) To have the services of a competent interpreter;(g) To communicate promptly with and to be visitedregularly by United States authorities, and to have suchauthorities present at all judicial proceedings. These

proceedings shall be public unless the court, inaccordance with Philippine law, excludes persons whohave no role in the proceedings.


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From the foregoing provisions of paragraph 9, we see that

detention and custody of U.S. personnel by Philippine authorities

while facing prosecution are in fact explicitly recognized. This is anecessary consequence of the recognition that inherent in

jurisdiction is the component aspect of custody as generally stated

in paragraphs 1 {a}, 2 {a} and 3 {a}; a recognition that is founded

on the territorial principle in international law as well as on the

principles of generality and territoriality in penal law.

Let us likewise revisit paragraph 10 which plainly provides:

Paragraph 10 - The confinement or detention byPhilippine authorities of United States personnel shall becarried out in facilities agreed on by appropriate Philippineand United States authorities. United States personnel servingsentences in the Philippines shall have the right to visits andmaterial assistance. (underscoring supplied)

Again, this provision recognizes that custody flows from thejurisdiction that is lodged in Philippine authorities that is clearly

acknowledged in paragraphs 1 {a}, 2 {a} and 3 {a}. If it were not

so, there would be no need to provide for an agreed-upon

confinement or detention facility. Paragraph 10 does not

distinguish between pre-conviction or post-conviction situations,

as can be inferred from the use of the terms confinement or

detention. It addresses the need to have a custodial facility that

must be mutually agreed upon. It recognizes that the custodial

facility to be determined and agreed on shall be one that is within

the jurisdiction of Philippine authorities or in layman's language,

a facility run and administered by Philippine authorities. This is

necessarily so because of the very wording of the paragraph that

opens with the phrase, The confinement or detention by

Philippine authorities... . The preposition by denotes

proximity to, within reach, just beside, nearby. If the intention

were otherwise, the phrase by Philippine authorities could have

been simply omitted. But even if the phrase were omitted, the


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inescapable conclusion would still be the same, that the agreed-

upon facility will have to be one that is run by Philippine

authorities, because of the clear acknowledgment in paragraphs 1{a}, 2 {a} and 3 {a} that Philippine authorities have jurisdiction.

Furthermore, the provisions of paragraph 9 that accord

certain minimum rights to U.S. personnel who are detained, taken

into custody or prosecuted by Philippine authorities, implicitly

recognize that the confinement or detention facility must

necessarily be one that is administered by Philippine authoritiesbecause, if it were not so, there would be no need to provide for

those minimum rights. If the confinement or detention facility

were intended and understood to mean, one that is run by U.S.

authorities, paragraph 9 would be a superfluity and paragraph 10

would be a hyperbole; purposeless stipulations, they would be.

The second sentence of paragraph 10, xxx xxx xxx UnitedStates personnel serving sentences in the Philippines shall have the right

to visits and material assistance, says it all. It confirms that the

custodial facility to be agreed upon shall be one that is run by

Philippine authorities that is why it provides for visiting rights

and material assistance. That this utterance is placed in paragraph

10 instead of paragraph 9 or elsewhere in Article V, can only

indicate that the custodial facility to be mutually determined mayas well serve as the facility for eventual service of sentence. We

earlier observed that paragraph 10 does not distinguish between

pre-conviction or post-conviction situations. As crafted and meant

to be understood therefore in paragraph 10, and under the spirit

that must have governed during the formulation and eventual

signing of the VFA, Philippine and United States authorities are

to agree on a custodial facility whereat U.S. personnel, who are

detained, taken into custody, prosecuted by Philippine authorities

or serving sentence, shall be held by Philippine authorities and

must be accorded minimum rights set forth in paragraph 9.


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Now, let us take a look at the much belabored, greatly

interpreted and overly understood paragraph 6 of Article V in itsentirety. It reads:

The custody of any United States personnel over whomthe Philippines is to exercise jurisdiction shall immediatelyreside with the United States military authorities, if they sorequest, from the commission of the offense until completion ofall judicial proceedings. United States military authorities shall,upon formal notification by Philippine authorities and without

delay, make such personnel available to those authorities intime for any investigative or judicial proceedings relating to theoffense with which the person has been charged. Inextraordinary cases, the Philippine Government shall presentits position to the United States Government regardingcustody, which the United States Government shall take intofull account. In the event Philippine judicial proceedings arenot completed within one year, the United States shall berelieved of any obligations under this paragraph. The one yearperiod will not include the time necessary to appeal. Also, theone year period will not include any time during which

scheduled trial procedures are delayed because United Statesauthorities, after timely notification by Philippine authorities toarrange for the presence of the accused, fail to do so.

Paragraph 6, as reproduced above, is the only paragraph in

the whole of Article V, nay, in the whole VFA, that bites more

than it can chew. An analysis of this paragraph will show that it

covers five (5) topics. These are: (1) Custody over the offender by

U.S. military authorities, if so requested, from the commission of

the offense until completion of all judicial proceedings; (2)

Obligation of U.S authorities to hold and produce the offender for

any investigative or judicial proceedings relating to the offense

charged; (3) Extraordinary cases regarding custody; (4) One-year

time line for completion of judicial proceedings after which the

obligation to hold the offender terminates; and (5) Time periods

that are excluded from the computation of the one-year time line.

The first sentence of paragraph 6 provides that custody of

any United States personnel over whom the Philippines is to


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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. This topiccontemplates of a case where the Philippine authorities have

jurisdiction and therefore custody but nevertheless allows

custody over the offender by U.S. military authorities, if they so

request.31 The phrase if they so request may seem to mean that a

mere request, not subject to any assessment or approval, will

suffice. However, during the Senate deliberations to ratify the

VFA,32

it was clarified by Senator Ople, the sponsor forratification, that such request is still subject to evaluation and

determination by the Philippines side. The interpellator though

did not buy the good sponsors explanation in view of the very

language used in the crafting of the provision in point, xxx shall

immediately reside xxx xxx if they so request xxx.

The operative phrases here are: shall immediately reside andif they so request, which can only mean that, to place custody in

the hands of U.S. authorities, all they need to do is to request and

it shall be given. This particular provision of paragraph 6 would

seem to be an exception to the general rule that whoever has

jurisdiction also has custody, custody being inherent injurisdiction

in Philippine authorities, that is clearly recognized throughout

Article V. It may even seem to conflict with paragraph 4, whichplainly states without any qualification that the arrested United

States personnel must be handed over to the authorities who are to

exercise jurisdiction, and under paragraphs 1 (a), 2 (a) and 3 (a), it

is the Philippine authorities that have the jurisdiction.

This first topic, which allows custody of the offender by U.S.

military authorities, brings about a situation where custody is

divorced from jurisdiction. The Philippines has jurisdiction but

31 (shall reside [ re (back) + sedere (sit) ], meaning dwell with the United States).32 VFA Transcripts of Session Proceedings, C.R. No. 42/P.S. RES No. 443/RES No. 18; May10, 1999.


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another State, which is the United States in this case, takes

custody over the person charged. Criminal jurisdiction is the

authority of the court to hear and try a particular offense and toimpose the punishment provided by law.33 In a criminal law

environment, jurisdiction without custody over the offender will

render jurisdiction illusory and meaningless because effective

enforcement of the end result of the exercise of jurisdiction, such

as the exaction of punishment, may not be obtained. It is for this

reason that custody of the offender is an integral part of

jurisdiction. In the case at bar, the Philippine authorities, even ifthey had exclusive jurisdiction over the persons of the petitioner

and his co-accused U.S. military personnel (therefore exclusive

custody) pursuant to paragraph 2 {a} and primary right of

jurisdiction to try the case per paragraph 3 {a}, never had effective

custody of them. It was only when the petitioner was ordered

committed to the MCJ by the respondent court upon conviction

that effective custody was acquired. Through the second NoteVerbale34 of the DFA to the U.S. Embassy, at the early stage of the

case, we see that there was no request for custody, either formal

or informal, that originated from the U.S. authorities. It would

seem to us that such a request for custody would be a condition

sine qua non before the U.S. authorities can take custody of the

petitioner pursuant to the very paragraph 6 that is invoked by the

petitioner and that is also invoked in U.S. Embassy Note No. 0060.Their non-compliance with the if they so request requirement

may have been due to the fact that they had actual custody of the

petitioner anyway. So why still bother, they must have thought.

Such a happenstance could only have arisen, possibly because of

a failure or lack of diligence on the part of the appropriate

Philippine authorities to undertake vigorous diplomacy;35 that is; to

effectively enforce, on the ground, the provisions of paragraph 4,

33 Conde vs. Mamenta, 142 SCRA 50034 No. 05-2662, dated 16, November 200535 Defined by Satow as the application of intelligence and tact to the conduct of officialrelations between independent States; in I Diplomatic Practice 1, cited in Salonga and Yap,Public International Law, 4th ed., 1974.


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on arrest. This singular omission may have led to the U.S.

authorities assertion, invoking with diplomatic flourish, paragraph

6, Article V, albeit not in the manner that had been outlined in thefirst sentence of paragraph 6s shall immediately reside xxx xxx xxx,

if they so request oxymoron formulation, that the Philippines was

in violation of the VFA.

Still on the first topic, the custody by U.S. military

authorities ranges from the commission of the offense until

completion of all judicial proceedings. To us, the term judicialproceedings is a general one and broad enough to include every

proceeding of a judicial nature before a court, officer or tribunal

vested with a judicial or quasi-judicial power. It may range from

the initiation of a complaint, pre-trial proper, to appeal. In the

municipal, criminal law and procedure context, it may embrace

preliminary investigation conducted by the first level court

judge,36

arraignment and plea at the trial courts, pre-trial and pleabargaining, trial proper (presentation of evidence), offer and

objection, rebuttal and sur-rebuttal, reconsideration, reopening

and new-trial, up to appeal. Any one of the component stages or

any step within the range of the term judicial proceedings, may

be properly referred to as judicial proceedings. It can therefore be

descriptively used. Petitioners conviction is on appeal and since

appeal is part of judicial proceedings, his custody by U.S.authorities should remain, so he argues.

In the topic on the one-year time line, however, we again

encounter the term judicial proceedings In the event judicial

proceedings are not completed within one year, the United States shall

be relieved of any obligations under this paragraph. Interestingly, in

arguing that custody over him should remain with U.S.

authorities, the petitioner defines judicial proceedings as all

proceedings from the beginning of trial up to the completion of

the appeal process. When it comes to the one-year time line for

36Municipal Trial Court Judges, before the amendments to the Criminal Procedure Rules ofDecember 2000.


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completion of all judicial proceedings, however, he now defines

the same judicial proceedings as one that necessarily refer to trial

proceedings only; because, he claims, the obligation of the U.S.authorities to hold and produce him for any investigative or

judicial proceedings is conditioned on the termination of judicial

proceedings (trial proceedings, this time) within a one-year

period. His interpretation of this particular topic on the one-year

time line is that the obligation to hold and produce him continues

indefinitely if the judicial proceedings (trial proceedings in the

lower court) are completed within one year. He has in mind asuspensive condition as opposed to a resolutory one.37 We have

here a petitioner who says judicial proceedings mean from trial all

the way to completion of appeal when arguing for custody by

U.S. authorities and says another, that judicial proceedings mean

trial court proceedings only when arguing the meaning of the

one-year time line bar vis-a-vis the U.S. authorities' obligation to

hold and produce him. The petitioner thus engages in selective,self-serving argumentation. We do not mean to imply here that in

taking a position with the petitioner on the issue of custody, the

Chief Prosecutor, Secretary of Justice and Solicitor General were

also engaging in the same kind of argumentation as the petitioner.

We understand that they were only for giving respect to the VFA.

Upon the other hand, the other interpretation which therespondent judge appears to have taken, is that the U.S.

authorities obligation to hold and produce the petitioner is

limited to only one year within which judicial proceedings must

be terminated; that beyond the one year time line, U.S. military

authorities would have no further obligation to hold and produce

the petitioner; that because of this cessation of obligation, the U.S.

military authorities would have no further basis to keep the

petitioner in their custody as in fact there is no further

37Article 1181 of Republic Act No. 386. In conditional obligations, the acquisition of rights,as well as the extinguishment or loss of those already acquired, shall depend upon thehappening of the event which constitutes the condition.


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that the U.S. military authorities will not hold on further to the

petitioner beyond the one year period to complete judicial

proceedings for the purpose of making him available toPhilippine authorities because its obligation to do so ceases after

one year, regardless of the completion of judicial proceedings

(trial proceedings). Because there is no further obligation to hold

and to produce him, the U.S. military authorities will be free to

deal with him as may be dictated by mission imperatives as

determined by the Commander.38

The term judicial proceedings also appears in paragraph 9

{g}, which reads:

To communicate promptly with and to be visitedregularly by United States authorities, and to have suchauthorities present at all judicial proceedings. Theseproceedings shall be public unless the court, in accordance withPhilippine law

, excludes persons who have no role in the

proceedings. (underscoring, supplied)

Gleaned from this provision is the clear import and

meaning that is attributed to the term, all judicial proceedings. It

is used in the sense of all proceedings at the trial court, because

under Philippine law, it is the judicial proceedings at the trial

court level that are held in open court, publicly or in public.

Appellate procedure under Philippine law does not require thepresence of the accused nor of witnesses. The appellate

proceeding itself cannot be characterized as public in the sense of

a public trial. This is the sense that all judicial proceedings must also

be understood as intended and used in paragraph 6; the same

sense that the petitioner adopts in arguing that the U.S. military

authorities remain obligated to hold and produce him beyond one

year.

38C/f, paragraph 3 {e} of Article V, VFA.


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The term all judicial proceedings as intended, used and

understood in the VFA may carry only one meaning, if there is to

be a fair and mutually beneficial compliance with its provisionson criminal jurisdiction; that is; that all judicial proceedings refer to

all trial court proceedings. The term is used in its descriptive sense,

not in its all-embracing sense. Thus, in paragraph 6, custody by

U.S. authorities over the offender who is under the jurisdiction of

Philippine authorities ends with conviction, the completion of all

judicial proceedings (the completion of all trial proceedings). The

petitioner may not remain further under custody by U.S.authorities after completion of all trial proceedings because there

is no longer any further co-relative obligation to hold and

produce him for any other investigative or (trial court) judicial

proceedings. His remaining in U.S. custody will keep him beyond

the jurisdiction of Philippine authorities who have exclusive

jurisdiction over him with respect to the offense that he has

committed (per paragraphs 2{a} and 1{a}) and primary right to tryhim (per paragraph 3{a}). It may have been in this light that the

order of the respondent judge to temporarily commit the

petitioner to the MCJ was issued.

We do not find the respondent judge's disagreement with

the public prosecution on the issue of custody to be an act in

excess of jurisdiction or tainted with grave abuse of discretion. Onthe matter of who may be the appropriate signatories to an

international agreement to bind the Philippines, the Vienna

Convention on the Law of Treaties39, enumerates the persons who

are considered as representative of a state in relation to treaty39 Dated on May 23, 1969

Part II, Article 7 1. A person is considered as representing a State for the purpose of adopting or

authenticating the text of a treaty or for the purpose of expressing the consent of the State to

be bound by a treaty if:a. he produces appropriate full powers;b. it appears from the practice of the States concerned or from other circumstances thattheir intention was to consider that person as representing the State for such purposes and todispense with full powers.

2. In virtue of their functions and without having to produce full powers, thefollowing the considered as representing their State:


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negotiations, and the Minister for Foreign Affairs, by virtue of his

functions and without having to produce full powers, is one of

those authorized. This would seem to indicate that their authoritymight also include agreements pursuant to a treaty between the

states, like the agreement mentioned in paragraph 10. In addition,

under the Administrative Code of the Philippines, the

Department of Foreign Affairs is also designated as the proper

authority to negotiate treaties and other agreements pursuant to

instructions of the President, and in coordination with other

government agencies.40

Clearly, both the Chief State Prosecutorand the Secretary of Justice may not be considered the authorities

referred to in the VFA .We likewise do not find him to have

gravely abused his discretion when he allowed the private

prosecution to be heard on the issue of custody. It was in fact a

prudent exercise in keeping with due process made more urgent

by the odd behavior of the public prosecution in taking the side of

the accused after a conviction, on the side issue of custody. In ajudicial environment, it is always better that all sides to an issue

be heard to pave the way for a fair and just resolution of a

controversy. He was well within his sphere of competence when

he performed his duty of hearing out all sides and in reading and

understanding the provisions of Article V of the VFA, which we

must emphasize are not at all that crystal clear contrary to the

opinions of many who may not even have had the opportunity toget hold of a copy of the VFA. It is after all the judge's duty to say

what the law is.

Not in one of the five (5) specifications of alleged grave

abuse of discretion, was the petitioner able to show that the

a. Heads of State, Heads of Government and Ministers for Foreign Affairs, for the

purpose of performing all acts relating to the conclusion of a treaty;b. Heads of diplomatic missions, for the purpose of adopting the text of a treaty

between the accrediting State and the State to which they are accredited.c. Representatives accredited by States to an international conference or to an

international organization or one of its organs, for the purpose of adopting the text of atreaty in that conference, organization or organ.40 Section 3, (5), Executive Order No. 292


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respondent court committed grave abuse of discretion. Yes, it is a

well-entrenched rule that if a statute is clear, plain and free from

ambiguity, it must be given its literal meaning and appliedwithout attempted interpretation.41 It is only when the language

of the law is vague and does not convey a clear and definite

meaning that construction or interpretation thereof must be

resorted to. In this case, the respondent court, confronted with the

apparent unharmonious and ambiguous provisions of paragraph

6, Article V of the VFA, vis--vis the other paragraphs of the same

Article as illustrated above, was left with no other option but tointerpret and apply the same, which is the office of the courts.

By interpreting and ruling that paragraph 6 applies only

during the judicial proceedings in the trial court and that

paragraph 10 applies after the promulgation of judgment of

conviction, it may not be said that grave abuse of discretion or

even abuse of discretion had been committed by the respondentjudge. It has been ruled that grave abuse of discretion may arise

when a lower court or tribunal violates or contravenes the

Constitution, the law or existing jurisprudence.42 The respondent

court in this case did not.

Besides, no matter how erroneous or irregular the rulings of

the respondent court might be, they may not be corrected bycertiorari because they are mere errors of judgment, one in which

the court or quasi-judicial body may commit in the exercise of its

jurisdiction and which are correctible by an appeal. We must

stress that in a petition for certiorari, the jurisdiction of the

appellate court is narrow in scope. It is limited to resolving only

errors of jurisdiction. It is not to stray at will and resolve

questions or issues beyond its competence, such as an error of

41 Philippine National Bank vs. Garcia, Jr., G.R. No. 141246, September 9, 200242 Banal III vs. Panganiban, G.R. No. 167474. November 15, 2005


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judgment.43 This was clarified in Angara v. Fedman Development

Corporation.44

With the foregoing discussions, the petition must

necessarily be dismissed but we have with us the submission of

the Solicitor General by himself and as counsel of petitioner-

intervenor DFA, who has ardently and vigorously asserted that

the position of the petitioner regarding custody is correct. He

imperiously45 intervened for the DFA and alleged that an

agreement, dated 22 December 2006, recently executed betweenDFA Secretary Alberto Romulo and U.S. Ambassador Kristie

Kenny constitutes a supervening event that even more warrants

the immediate removal of petitioner Smith from the MCJ to the

U.S. Embassy. The agreement reads:

The Department of Foreign Affairs of the Republic of thePhilippines and the Embassy of the United States of Amercia

agree that, in accordance with the Visiting Forces Agreementsigned between the two nations, upon transfer of LanceCorporal Daniel J. Smith, United States Marine Corps, from theMakati City Jail, he will be detained at the first floor, Rowe(JUSMAG ) Building, U.S. Embassy Compound in a room ofapproximately 10 x 12 square feet. He will be guarded roundthe clock by U.S. military personnel. The Philippine police andjail authorities, under the direct supervision of the PhilippineDepartment of Interior and Local Government (DILG) will

43

Chan vs. Court of Appeals, G.R. 159922, April 28, 200544 The wisdom or soundness of the RTCs orders involves a matter of

judgment which is not properly reviewable by petition for certiorari, which isintended to correct defects of jurisdiction solely and not to correct errors ofprocedure or matters in the RTCs findings or conclusions. Any errortherein amounts only to an error of judgment. An error of judgmentcommitted by a court in the exercise of its legitimate jurisdiction is not thesame as grave abuse of discretion. Errors of judgment are correctible by

appeal, while those of jurisdiction are reviewable by certiorari. F urthermore,where the court has jurisdiction over the subject matter, the orders or decisionsupon all questions pertaining to the cause are orders or decisions within its

jurisdiction and however erroneous they may be, they cannot be corrected bycertiorari. Elsewise stated, when the court has jurisdiction over the case, itsquestioned acts, even if its findings are not correct, would at most constitute errorsof law and not abuse of discretion correctible by the extraordinary remedy ofcertiorari.

45A term that he used in his motion for leave to intervene (with prayer to admit attachedPetition-in-Intervention)


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have access to the place of detention to ensure the United Statesis in compliance with the terms of the VFA.

The Solicitor General further asserts that the agreementaptly fulfills the condition prescribed by the respondent judge in

his order of commitment, thus paving the way for the immediate

transfer of the petitioner from the MCJ to such designated facility

at the U.S. Embassy. A reading of the order of commitment and of

the subsequent order that denied reconsideration thereof, as well

as an understanding of what we have just discussed above will

probably suffice to answer the Solicitor General's assertion.

If it is the position of government that the language of the

VFA is clear as seen by the petitioner and as also seen by the U.S.

Embassy,46 despite the strong and palpable indications that it is

not so, then let it do as it sees fit and deal with such latest

agreement as its sound judgment permits; for as Justice Holmes

once wisely observed, the other branches of the Government areultimate guardians of the liberties and welfare of the people in quite as

great a degree as the courts.47 Courts may not directly intervene in

the exercise of diplomacy no matter how proudly or meekly,

strongly or weakly, such exercise may be conducted by the

appropriate political organ of government. Courts may only say

what the facts are and what the law may be in a given case or

controversy and rule accordingly. That is what the respondentjudge did and that is what we can also only do; nothing more and

nothing less.

As the weakest amongst the ultimate guardians of the

liberties and welfare of the people, we can only soberly articulate

that custody and jurisdiction are essential to sovereignty. It is so

recognized by the VFA. The agreement that is spoken of in theVFA is solely about the confinement or detention facility run by

46Which incidentally is just one side of an issue and therefore necessarily self-serving.47Missouri, Kansas & Texas Railroad Co. v. May, 194 U.S. 267, 270.


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Philippine authorities.48 There is no provision about any

agreement on custody. Paragraph 6 of Article V allows limited

custody and limited obligation to hold and produce but does notstipulate the need for any agreement to put limited custody into

effect. It operates simply on a shall immediately reside xxx xxx if

they so request basis. The temporary commitment of the petitioner

to the MCJ is not in violation of the VFA. It is in accord with

municipal law and penal statutes and with the VFA, since there is

as yet no agreement about the confinement or detention facility.

All the agreements that have been presented to the courts pertainto custody and not to a confinement or detention facility as

stipulated in paragraph 10.

The agreed-upon facility may well be in the U.S. Embassy,

or in any other place within the Philippine territory.49 For as long

as it is a confinement or detention by Philippine authorities, such

an agreement shall be in apt compliance with the letter andspirit of the VFA. The rights enumerated in paragraph 9, Article V

shall be accorded all inmates in such a facility, to include the

visitation rights and material assistance stated in paragraph 10 of

the same Article. The laws and rules pertaining to the

confinement or detention of prisoners to be enforced within the

facility shall be in accordance with the principles of international

law to which both the GUSA and GRP adhere. The GRP shall givenotice to the GUSA of any and all conditions related to the

inmates confinement or any changes that may be undertaken and

shall allow access at all times to appropriate GUSA authorities to

ensure compliance by both state parties with the provisions of the

VFA as well as with the aforesaid principles of international law.

It must be emphasized that it is not the physical lay out of

the agreed-on confinement or detention facility, or the stringency

48 Paragraph 10; related to paragraphs 9 and 4, all of Article V of the VFA.49 Say, in the Seafront Property also along Roxas Boulevard; in old Fort Stotsenburg,Pampanga; Subic Bay, Zambales; or in former Camp John Hay.


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of security (e.g. 24/7 roving guard duty by a platoon of U.S.

Marines), but the simple fact that it be run by Philippine

authorities that makes any such agreement fully compliant withthe VFA.

We began our resolution with a quotation from Article II of

the VFA, about Respect for Law and we return to it to ask:

Have we been able to enforce this seemingly innocuous

provision? Have we been able to appreciate the VFA in a manner

that is consistent with the principles of sovereignty?

We close by reiterating the following declaration of

principles and state policies:

The Philippines is a democratic and republicanState. Sovereignty resides in the people and allgovernment authority emanates from them.50

The prime duty of Government is to serve andprotect the people.51

The State shall pursue an independent foreignpolicy. In its relations with other states theparamount consideration shall be nationalsovereignty, territorial integrity, national interest,and the right to self-determination.52

WHEREFORE, all of the foregoing considered, we resolve to

DISMISS the petition and all other motions that attach thereto for

lack of merit.

IT IS SO ORDERED.

50 Section 1, Article II of the Constitution of the Republic of the Philippines. (1987)51 Section 4, ibid52 Section 7, ibid.


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APOLINARIO D. BRUSELAS,JR.

Associate Justice

WE CONCUR:

JOSEFINA GUEVARA-SALONGAAssociate Justice

FERNANDA LAMPAS-PERALTAAssociate Justice

Smith v. Pozon orig draft

Documents

Transcript of Smith v. Pozon orig draft