RELEASE OF SMITH: ABSOLUTE DISREGARD FOR THE JUDICIARY THE SUPREME COURT AND THE CONSTITUTION

The surreptitious release of Cpl. Daniel Smith, in the middle of the night at that, to the custody of the United States, despite pending litigation in Philippine courts, is not only a violation of the Constitution, but also a complete disregard and disrespect for the judicial branch including the Supreme Court. It is not only a contempt of court, but treachery that signals the complete breakdown of the rule of law.

Pres. Gloria Arroyo has submitted the custody issue to the jurisdiction of the judiciary by intervening in the Court of Appeals and arguing against Judge Pozon’s order. Not only is the Executive without the power to transfer a convict under the custody of the Regional Trial Court, but it is also estopped from doing the same since it submitted the issue to the judgment of the Court of Appeals, and ultimately the Supreme Court. The unilateral action by the Executive is courting a constitutional clash between two branches of government, should the Supreme Court uphold RTC Judge Pozon and order the Executive to confine Smith to the Makati City Jail or the New Bilibid Prisons. The US embassy is a foreign territory under international law, beyond the reach of any Supreme Court order.

Pres. Gloria Arroyo has again committed another culpable violation of the Constitution. Under Sec. 17 and Sec. 5, of Art. VII, 1987 Constitution the President is required to defend the Constitution and execute all laws faithfully.

Under Section 13 of the 1987 Constitution, anyone who commits a capital offense in the Philippines cannot post bail nor be released on recognizance, when the evidence of guilt is strong. Not only were the evidence strong against Smith, but they were sufficient to find him guilty beyond reasonable doubt. Allowing the accused to remain in US custody is releasing Smith on ‘recognizance’ to the US government, clearly not allowed under the Constitution. The Visiting Forces Agreement, or any treaty for that matter, cannot trump the 1987 Constitution.

The US will in fact be violating their obligations under the VFA if they continue exercising absolute custody over the accused as provided in Art. II (VFA):

Art. II It is the duty of the US personnel to respect the laws of the Republic of the Philippines x x x The US Government shall take all measures within its authority to ensure that this is done.

Wrong Appreciation of the VFA

The VFA is unconstitutional under Sec. 25, Art. XVIII of the Constitution which provides that :

Sec. 25. x x x foreign military bases, troops or facilities shall not be allowed in the Philippines EXCEPT UNDER A TREATY CONCURRED IN THE SENATE and, x x x RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING PARTY.

The US has not recognized the VFA as a treaty, and has refused to have it ratified by the US Senate until today. Since, the VFA is not recognized as a treaty by the US, it cannot be the basis for the entry of “foreign troops and facilities” into the Philippines. It is the height of self-humiliation for Pres. Arroyo to insist on calling the VFA a ‘treaty’ while the US refuse to accord it the same level of respect.

Additionally, transferring Smith to the custody of the US violates the VFA presuming the VFA is constitutional. The relevant provision is not Paragraph 6, which discusses the trial stage, but the later provision under Paragraph 10, which appropriately discusses the custody of those convicted and are serving sentence, to wit:

Sec. 10—The confinement or detention by Philippine authorities of US personnel shall be carried out in facilities agreed on by appropriate Philippine and US authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.

Cpl. Daniel Smith has been convicted, and is now serving sentence. If he loses his appeal in the Supreme Court, the time he spent under detention is counted as part of his sentence under the Rules of Court. Sec. 10 no longer provides for US custody, but merely requires that the US has a say on which facility he will serve his sentence. The facility contemplated under sec. 10 is any of the Philippine prisons, and not a prison facility outside the Philippine jurisdiction. The US Embassy is not a detention facility abd is a foreign territory outside the jurisdiction of Philippine courts.

Unequal Relations under the US Counterpart VFA

The US also signed a counterpart VFA which regulates the entry of Filipino soldiers in the US. The counterpart VFA is strictly and unequally construed against the Philippines.

Under the US VFA, the US can immediately imprison any Filipino soldier who commits a crime in US territory, and may waive said right only upon ‘request’ of the Philippine government, but unlike the Philippine VFA, the ‘request’ may be denied. Article VIII, Sec. 2 of the VFA Counterpart Agreement in the US (VFA Part II) merely requires the US government to request US ‘authorities’ detaining a Filipino to release that Filipino to Philippine custody:

Sec. 2 (VFA II) x x x The (US) Department of Defense will ask the appropriate authorities in the United States having jurisdiction over an offense committed by Republic of the Philippines personnel to waive in favor of the Republic of the Philippines their right to exercise jurisdiction, except in cases where the Department of State and the Department of Defense, after special consideration, determine that United States interests require the exercise of United States federal or state jurisdiction.

Since the US maintains the right to refuse the Philippine ‘request’ for custody, the Philippines should also do the same under the terms of the counterpart agreement. By giving the US the absolute discretion on the custody of a convicted US personnel, immediately clashes with the Constitutional rights of the rape victim, legal provisions on bail and the equal protection clause.

This is the first time when a US serviceman is convicted of rape and allowing the convict to escape punishment is not only unjust on the victim but an insult to Philippine sovereignty. This disparity in treatment is magnified by the fact that arrested Filipino “TNT’s” in the US are immediately detained and deported like cattle for not having a visa, while the convicted Smith stay in comfortable rooms in his embassy.

The Visiting Forces Agreement is unconstitutional. It not only violates the 1987 Constitution’s provisions on deployment of foreign troops, nuclear free Philippines and provisions on sovereignty, among others, but it also violates the Constitution’s provisions on criminal offenses. By not asserting Philippine sovereignty and jurisdiction over the convicted rapist and transferring his custody to a foreign power, in violation of the Constitution, Pres. Arroyo has added one more ground for her impeachment and one more item in the list of crimes she has committed against the Filipino people.

Reference : Atty. Neri Javier Colmenares

Date : December 30, 2006

CODAL CONDEMNS KILLING OF HUMAN RIGHTS LAWYER: Seven lawyers killed this year

CODAL condemns the brutal killing of human rights lawyer Atty. Gil Gojol and the recent spate of attacks against lawyers and their families. Atty. Gojol has been a human rights lawyer in Bicol since the 1990s and was lawyer to Bicol farmers and many political prisoners charged by the military with acts of rebellion, including Sotero Llamas who was also gunned down this year. He was also counsel to members of the Kilusang Magbubukid ng Pilipinas (KMP) and Bayan Muna. He has been in the so called ‘order of battle’ of the AFP for sometime now due to his militant advocacy for human rights.

No less reprehensible is the killing of Asst. Solicitor General Nestor Ballacillo who was the second lawyer involved in the Piatco-Naia 3 expropriation case to have been assassinated. Seven members of the legal profession were killed this year, mostly by motorcycle riding men, namely:

1. Atty. Gil Gojol who was killed with his driver in Gubat, Sorsogon;about 200 meters from a detachment of the 22nd IB of the Philippine Army;
2. Atty. Nestor Ballacillo who was killed with son, Benedict in Metro Manila;
3. Atty. Froilan Villacorta Siobal who was killed with his wife, Erlinda, in Alaminos, Pangasinan,
4. Atty. Rogelio Montero, who was shot together with his son who is a State Prosecutor in Bulacan;
5. Atty. Carlo Magno Umingga, whose wife was also wounded in the attack in Pangasinan;
6. Pros. Godofredo Pacenio, who was killed in Agusan del Norte; and
7. Judge Sahara Silongon who was killed in Cotabato City.

Human rights lawyers of the Pro-Labor Legal Assistance Center, who are counsels to workers of Hacienda Luisita were trailed by unmarked cars and a motorcycle riding man who was later accosted and identified as Private Rommel Santiago of the Philippine Army. Army General Jovito Palparan is suspected of involvement in many of the political killings. The killing of human rights lawyers such as Bayan Muna counsel Atty. Felidito Dacut and Vice-Mayor Juvy Magsino is part of the unabated political killings that plague to country today meant to eliminate activists, dissenters and their lawyers. Surviving victims of the attack and the families of those killed point to the military as the perpetrators of these crimes. Gen. Palparan headed the army unit in Mindoro when Atty. Juvy Magsino was killed in 2004. He was also head of the Army in Eastern Visayas when Atty. Dacut was killed in 2005.





The Philippines has become one of the most dangerous places for lawyers. Nine lawyers, one judge and one law student were shot and killed in 2005. Twelve judges have been killed under the administration of Pres. Gloria Arroyo, and many of these remain unsolved until today.

The attack against lawyers, including human rights lawyers, is a serious threat not only on the practice of law but also on civil liberties as well, since it deprives the poor and marginalized sectors access to and representation in our courts. Almost all of these attacks have remained unsolved as the police continue to fail to arrest the perpetrators, thereby resulting in impunity and unabated killings. There has been no satisfactory development in the case of Judge Guingoyon who killed almost one year ago. The government has failed to come up with serious leads in the killings of lawyers and activists since 2001.

CODAL calls on Pres. Gloria Arroyo to condemn these attacks against lawyers and order the Philippine National Police to immediately and seriously investigate the killing of lawyers and harassment of other members of the legal profession. We challenge the government to also offer a P 1 Million reward for those who will provide information leading to the arrest of the killers of Atty. Gojol similar to that offered in the case of Asst. Solicitor General Balacillo.

CODAL asks the Supreme Court to intervene and actively press the government to prosecute those involved in these attacks. CODAL asks the Integrated Bar of the Philippines to file a complaint with the United Nations Special Rapporteur on Human Rights Defenders and inform international bodies of lawyers and judges of the current condition in the Philippines considering that the Philippine justice system, including the Melo Commission, is unable or unwilling to seriously investigate these killings and prosecute the perpetrators.






Reference Person : Atty. Neri Javier Colmenares
Date : December 14, 2006

NO ELECTION A CERTAINTY IF CON ASS IS FORCIBLY CONVENED

CODAL warns Charter Change proponents that their plan to scrap the 2007 elections may lead to a constitutional and political crisis. Speaker Jose de Venecia justified their proposed scrapping of the 2007 elections by admitting that it would be impossible for the Comelec to conduct a plebiscite in February and also conduct the election in May 2007. The Speaker, however, premised his argument on the possibility that cha-cha advocates will get a “yes” vote during the plebiscite. If the people will reject charter change in the plebiscite, there will still be no elections in May 2007, due to the physical and budgetary impossibility of conducting one. The COMELEC budget cannot afford two national electoral exercises, especially if the 2006 budget is reenacted. The failure to hold elections in 2007 should ‘charter change’ be defeated in a plebiscite, will create an unconstitutional government considering that half of the Senate, the entire House of Representatives and all local officials in the country will be “holding over” beyond their constitutional mandate and term, a crisis of unimaginable proportion for the Arroyo government. In fact, Chairman Abalos warned about this crisis in his recent statements before the media, and we quote:
Abalos also warned of a constitutional crisis if there would be no elections next year since there would no longer be a House of Representatives or Senate, because its members could not remain in office in a hold-over capacity.
“I don’t want to be an alarmist but if the 2007 elections don’t push through due to lack of funds, we will have a constitutional crisis because we will have no House of Representatives and a Senate with only 12 members,”

Constitutional Issues against “Con-Ass”

According to a CODAL study the current move in the House to delete from House Rule 105 the provision which states that The adoption of resolutions proposing amendments to or revision of the constitution shall follow the procedure for the enactment of bills is legally and constitutional untenable. While an ordinary bill will require the scrutiny and careful consideration of the House through 3 readings and the passage of a similar bill from the Senate, the House majority cannot explain why amendments to the Constitution need not go through the rigor of that similar process. Such a deletion will only lead to a “con ass’ without the Senate, a violation of Art. XVII, Sec. 1 of the Constitution. Speaker de Venecia and the House majority actually violates its own rules by doing so, since Rule XXV, Sec. 150 of the Rules of the House provide that :
“Rule 150—Any provision of these Rules, except those that are also embodied in the Constitution, may be amended by a majority vote of all the members of the House”

The other constitutional issue against Con-Ass is the fact that a joint session of Congress can only be convened if each of the two Houses issue a joint resolution convening both Houses in a joint session. It cannot be achieved, under the Constitution, by one House ‘inviting’ the other. Absent a Senate resolution calling for a joint session, any Senator who attends the ‘con-ass’ does so in his personal capacity and not in representation of the Senate as an institution. The Senate-less ‘con ass’ is therefore illegal and unconstitutional and will subject those who participate in it to criminal liability. Senators attending the “con ass “ representing the Senate will commit the crime of ‘usurpation of authority” under Art. 177 of the Penal Code which penalizes with prision correccional, “any person who shall knowingly and falsely represent himself to be an … agent or representative of any department or agency of the Philippine government, under pretense of official position x x x without being legally entitled to do so.”

Officials who will remain in office after the expiry of their term in June 2007, is liable under Art. 237 of the Revised Penal Code which penalizes public officials who “continues to exercise the powers and functions of his office…beyond the period provided by law’ with prision correctional and temporary disqualification from holding public office.


Rampage during the Asean

CODAL warns that blatant attempts to ram the passage of charter change through a ‘con ass’ despite the unconstitutionality and illegality of such move will only exacerbate the political instability and increase the unpopularity of Pres. Gloria Arroyo who is perceived as leading the ‘final push’ in tandem with Speaker de Venecia. The pent-up anger of the people will only increase the protest currently being planned during the ASEAN conference.

The ‘con ass’ scenario, whether or not it is approved in the subsequent plebiscite will result in the cancellation of the 2007 elections. The constitutional crisis that looms because of the blatantly unconstitutional attempts to short-circuit the process of amending the Constitution is imminent, unless ‘con ass’ is successfully shelved or defeated.


Reference Person Atty. Neri Javier Colmenares
Date: December 4, 2006