he legally unthinkable has happened!

At 11 o’clock P.M. on Friday, December 28, 2006, US Marine Daniel Smith was whisked out from his detention cell at the Makati Jail by four US officials and two officials of the DILG. Accounts have it that officials of the BJMP holding custody of Smith had no inkling that this would happen. In fact, Smith was out of jail in 30 minutes after the US and Philippine government officials arrived.

Secretary of Interior Government Ronaldo Puno has taken responsibility for the transfer of Smith’s custody. He has admitted that the decision was made during a meeting of the Cabinet’s national security cluster which was conducted even before Christmas day. If the newspaper articles are to be believed, Justice Secretary Raul Gonzalez was supposed to have said that, Smith’s removal from the Makati jail “is an exercise of executive prerogative in the conduct of foreign relations”.

As far as the public is concerned, the custody issue over Smith is a pending issue which has been brought by Smith’s lawyers before the Court of Appeals. The government through the Office of the Solicitor general has in fact intervened in the case to question the Order of Judge Pozon refusing the turn over of Smith over to US officials.

All lawyers worth their salt and all freedom-loving Filipinos should unite to express outrage over this latest machination of the Gloria Arroyo Government on account of the following observations:

1. THE RELEASE OF SMITH WITHOUT A COURT ORDER IS A CONTEMPTIBLE ACT.

In masterminding the extra-legal release of Smith, the DOJ has committed a contemptible act if only because, in intervening in the Court of Appeals case, it is bound by whatever resolution the Court of Appeals will issue regarding the custody controversy. So far, the Court of Appeals has not yet made a ruling on the Petition filed by Smith on the custody issue. The DOJ, with the blessings of President Gloria Macapagal Arroyo, has TAKEN THE LAW INTO ITS HANDS by causing the transfer of Smith’s custody from the Philippine jail authorities without the necessary court order.

2. THE ACT VIOLATES THE PRINCIPLE OF SEPARATION OF POWERS

When the GMA administration could not get Smith’s release through harassment against Judge Puzon, this government – in utter disregard for rule of law - came up with the bright idea of justifying the illegal release of Smith at the pretext of complying with treaty obligations. Assuming, for the sake of argument that, Judge Pozon indeed committed an error in interpreting specific provisions of the Visiting Forces Agreement, it is up to the Courts to issue a resolution on the matter. In the meantime, all parties, including the President, are duty-bound to await the resolution.

3. THE ACT OF CAUSING SMITH’S RELEASE CONSTITUTES AN IMPEACHABLE OFFENSE

The President, under the Constitution, has the sworn duty to uphold the law, which includes decisions of the Courts. In merely consenting to Smith’s release, the President has committed a CULPABLE VIOLATION OF THE CONSTITUTION (under Article XI, Section 2 of the Philippine Constitution) which is an IMPEACHABLE OFFENSE.

4. ONLY THE SUPREME COURT IS VESTED WITH THE POWER TO INTERPRET TREATIES

At the heart of the Smith’s Petition is the interpretation of specific provisions of the Visiting Forces Agreement (VFA). The Court’s Resolution on the issue will determine whether or not, Smith may be taken custody of by the US authorities while his conviction in the rape case is pending appeal. This government – through the DOJ – decided to cause Smith’s release “in compliance with treaty obligations”. The executive branch - in effect – made an interpretation of the controversial provision of the VFA. Worse, it carried out this interpretation by releasing Smith. Such an act encroaches into what is rightly a judicial function as provided for in Article VIII, Section 4, paragraph 2 (of the Philippine Constitution) which vests on the Supreme Court the power to interpret treaties, international or executive agreements.

We call on the President to respect and uphold the Constitution and the laws of the Government of the Philippines!

We call on all freedom-loving Filipinos to assert the Rule of Law. No one, not even the President, has the right to put the law into their hands!

“We the people are the rightful masters of both Congress and the Courts – not to overthrow the Constitution, but to overthrow the men who pervert it.
Ti sin by silence when they should protest makes cowards of men.”


COUNSELS FOR THE DEFENSE OF LIBERTIES
(CODAL) – Baguio-Benguet Chapter
December 31, 2006

References :

Atty. Mary Ann Manja Bayang (09178829901)
Atty. Francisca Claver (09209145486)
Atty. Cheryl Daytec-Yangot