Law professor opines: RP-US transfer of Smith to Embassy 'could be right'

The position of the Philippine and US governments on the transfer of American marine Lance Corporal Daniel Smith from the Makati City Jail to the US Embassy "could be right", said a professor of international law at the University of San Carlos in Cebu City.

Lawyer Hedelito Pascual agreed that it should have been done through the legal processes because the courts are eventually the ones given the right to determine whether the interpretation of the parties involved in the bilateral agreement is correct.

Under the country's Constitution, however, the President has the exclusive authority to enter into treaties or international agreements and that the Supreme Court will not interfere for as long as the signing of any treaty is not contrary to law or a contravention to the Constitution, he said.

Pascual, on personal note, also agreed with the decision of the Court of Appeals stating that the issue on Smith's petition was moot already. "What is there to decide when he (Smith) is already under the custody of the US Embassy," he said.

While he did not question the move of the complainant's lawyer Evalyn Ursua to elevate the case to the SC, Pascual said Smith is not a fugitive yet because his case is still on appeal.

The conviction of Smith has not yet become final and executory, and any decision over his appeal can still be elevated to the High Court, said Pascual.

"Even under our Bill of Rights, an accused is presumed innocent until proven guilty. Besides, it was not Smith's initiative to transfer (to the US Embassy) but that of the Philippine government," Pascual said.

Meanwhile on the move of the Philippine government to review the Visiting Forces Agreement, Pascual said the government must try its best to insist that the United States will not negate the legal processes of the country, especially on cases similar to Smith's.

The professor noted that since the VFA is a bilateral agreement, those tasked to review it must get first the approval from the US on the matter although he doubts if that country will agree easily to such proposal. - Gregg M. Rubio/RAE