15 February 2009
The foot-dragging by the Philippine executive department in negotiating with American authorities the transfer of Lance Cpl. Daniel Smith to a Philippine penal facility is bound to create a constitutional crisis.
The delay in complying with the order of the Supreme Court that forthwith the Romulo-Kenney agreement must be renegotiated subverts the judicial supremacy of the highest tribunal.
The Romulo-Kenney agreement allowed the detention of Smith in the American Embassy pending appeal of his conviction for rape.
The Supreme Court ruled that this arrangement is repugnant to the Visiting Forces Agreement (VFA) which provides that an American military personnel charged with a crime before a Philippine court has to be detained in a facility under Philippine authorities and the only condition is that the facility must be agreed upon by representatives of the Philippine and American governments.
The custody of Smith cannot depend on the self-serving option of the American authorities because this would impair the constitutional power of judicial review of the Supreme Court.
The Philippine government cannot just stand by and wait until the Americans are “ready to talk” because they may capriciously refuse to talk or deliberately procrastinate to renegotiate.