Recantation to affect VFA review - Palace

MANILA, Philippines - A Palace official admitted yesterday that the recantation made by Subic rape victim “Nicole” against American Marine Lance Corporal Daniel Smith could have an impact on the review of the Visiting Forces Agreement (VFA).

At the weekly press conference at Malacañang, Executive Secretary Eduardo Ermita said the review of the VFA would now depend on the action to be taken by the United States, particularly on the provisions covering the custody of American servicemen involved in a crime.

Ermita said the move of Nicole also took the Palace by surprise, as he reiterated that they had nothing to do with it.

Calls for a review of the VFA were prompted by a ruling by the Supreme Court (SC), which declared the VFA constitutional but directed Smith to be placed under the custody of Philippine authorities.

Members of the Senate were among the most vocal on the need to review the VFA, with some even pushing for its abrogation for failure of the Philippine government to get custody of Smith.

Just a few days after the SC handed down its ruling, Foreign Affairs Secretary Alberto Romulo met with US Ambassador Kristie Kenney to discuss the custody of Smith.

Kenney has noted that treaty experts of the State Department and the Philippine Department of Foreign Affairs (DFA) are now studying the matter.

She added that some experts would come to Manila but no time has yet been set.

US Embassy spokesperson Rebecca Thompson said US and Philippine officials in Washington have begun a dialogue on the return of Smith to Philippine custody and the VFA.

But Thompson did not comment on whether the dialogue was requested by US President Barrack Obama, who called President Arroyo last Saturday.

The diplomat also did not identify US government agencies participating in the dialogue.

Ermita admitted that Nicole’s recantation and her subsequent decision to go to the US “for good” would have an effect on the decision-making process of the US government on the VFA.

The VFA was the basis for the move of the US embassy to secure Smith immediately after his conviction, which drew heavy criticisms from the camp of Nicole as well as other sectors that joined her cause.

The Philippine government also took the position that custody of Smith would be with the US government until all appeals are exhausted.

The statement of Nicole and the testimonies of witnesses became the basis of the court in reaching its decision to convict Smith of rape.

Smith has filed an appeal before the CA, which is still deliberating on the case.

Ermita argued that there is still the possibility that the appeal of Smith would be successful, making moot the issue of custody.

He said that the tensions brought about by the case of Nicole could either end or be reduced if Smith’s conviction is overturned.

“Let us just wait for the decision of the Court of Appeals. Because of the affidavit recanting and if ever the judgment is in favor of the accused, then there is nothing more to talk about on the issue of detention,” he said.

He added that the government would continue its own review of the VFA, particularly on the controversial provisions.

“The so-called flaws are not really new and these are in continuous review by the executive branch, both by the Secretary of Foreign Affairs and the Secretary of National Defense,” Ermita said.

Defense Secretary Gilbert Teodoro Jr. had supported the review of the VFA but stressed that this should be done only after the emotions over the case of Nicole have settled down.

Petition to continue

Former senators and lawyers said they would continue with their petition before the SC to declare the VFA unconstitutional for being lopsided in favor of America, despite the decision of Nicole to recant her testimony.

In a statement, former senators Jovito Salonga and Wigberto Tañada and lawyer Harry Roque of the University of the Philippines’ Law Center said they would not begrudge Nicole for entering into an out-of-court settlement with Smith because “it is her prerogative as an offended party.”

However, they said that as petitioners in the SC case, the recantation of Nicole would not affect the issue of the constitutionality of the VFA.

“We filed our petition separate and distinct from Nicole in our capacity as citizens suing to impugn an agreement that violates our Constitution. When this case was scheduled by the High Court for oral arguments, Nicole was not a party to the case and was not notified of the oral arguments,” they said.

The petitioners said at their suggestion, Nicole’s lawyer, Evalyn Ursua, asked the High Court for permission to participate in the case.

Ursua also expressed surprise over Nicole’s decision to settle her case.

“The lessons learned from the case of Nicole is very clear: Unless abrogated, the VFA treats Filipinos as second class citizens in their own country. The message should be very clear to all Filipinos: Under the VFA, American servicemen committing non-service related offenses such as rape could be accorded impunity as their punishment could consist of alleged detention in air-conditioned facilities complete with a gym and Internet access, and by Manila Bay at that,” the petitioners said.

“We stress that the recantation notwithstanding, the VFA is not a treaty that pursuant to the language of our 1987 Constitution could be a basis for the stationing of troops in the country. Pursuant to the dissenting opinions of (SC) Chief Justice Reynato Puno and Justice Antonio Carpio, that pursuant to the case of Medelin vs. Texas, the VFA, in the absence of an implementing legislation and bereft of language that would make it self-executory, is not the treaty required by our Constitution as a pre-condition for the presence of foreign troops in the country,” the petitioners said.

They said the VFA was seeking to re-establish the presence of US troops in the country, after the rejection by the Philippine Senate in 1992 of proposals to extend the US-Philippines Military Bases Agreement.

The VFA seeks to accomplish precisely what the Senate, under the leadership of Salonga as Senate president, has already rejected.

Petitioners added that the recantation, since it was never presented during the trial and never identified and attested to by Nicole in court, would be a mere scrap of paper and that the Court of Appeals should treat it that way.

Under the law on evidence applicable in the Philippines and the US, an affidavit is hearsay unless the other party is accorded right to cross-examine the affiant, they said.

They also questioned the ethics of Smith’s counsel in obviously negotiating, dealing, and preparing an affidavit of recantation for Nicole on the sly and without participation of her counsel.

“If only because Smith’s counsel is one of the largest law firms in the country, we would have wanted to see it as a paragon of virtue. We call on the Supreme Court and the IBP (Integrated Bar of the Philippines) to look into the conduct of this firm and ensure that the legal profession is insulated from similar deplorable conduct in the future,” they said.

They said Nicole’s recantation was not evidence that she had consensual sex with Smith but that she had already entered into an out-of-court settlement with the convict, the terms of which were only known to Smith, his counsel and Nicole.

“In this case, where the out-of court-settlement is made after the introduction of evidence and after a finding of guilt beyond a reasonable doubt, the sole means to implement an out-of-court settlement would be to execute an affidavit that would give rise to reasonable doubt. This explains why Nicole’s statement did not unequivocally say that she was not raped; only that she now doubts the accuracy of her earlier recollection of events,” petitioners said.

Junk VFA

Quezon Rep. Lorenzo Tañada III said the VFA should be junked, invoking the controversial SC decision that the detention of Smith in the US embassy is illegal.

“It is infuriating and disappointing that the government is so afraid of hurting relations with the US that they are willing to sacrifice our sovereignty and dignity,” the head of the Liberal Party in the House of Representatives said.

“The DFA secretary played a part in whisking away the convicted rapist to foreign territory, US embassy. The MOA should never have happened if only the DFA protected Nicole, instead of Smith,” Tañada added.

The opposition lawmaker said he signed the manifesto urging the Philippine government to abrogate the pact with the US “because I believe that the VFA was unconstitutional because it allowed the entry of an unlimited number of foreign troops for an indefinite period of time without any formal treaty.”

Nicole, he said, “helped exposed the VFA as a sham agreement because of its unequal provisions.”

“I appreciated Nicole’s courage throughout the ordeal, and I fully understand Nicole if she wants to start over and leave this issue behind.”

“The VFA has provided a mantle of protection for US military personnel to do even criminal acts without recrimination. Filipinos are vulnerable against abuse and they can’t even turn to their government for justice,” he said.

He urged the CA not to be influenced by the supposed new statement of Nicole.

“The unauthenticated affidavit supposedly issued by Nicole should not even be considered by the Court of Appeal in its deliberations. The review of the case should be based on testimonies and evidence presented during the Makati RTC hearing,” he said. — With Aurea Calica, Delon Porcalla