MARINE CASE: NEW MOTION TO SUPREME COURT AND

UNCLAS MANILA 000064

SIPDIS

SIPDIS

STATE FOR EAP, PM, AND EAP/MTS
USPACOM ALSO FOR FPA HUSO AND J5
SECDEF/OSD/ISA/AP (TOOLAN/BAILEY)
JOINT STAFF/J5 (WILKES/ROBINSON)

E.O. 12958: N/A
TAGS: PREL MARR CASC KCRM RP
SUBJECT: MARINE CASE: NEW MOTION TO SUPREME COURT AND
CALLS FOR VFA REVIEW

REF: MANILA 38 AND PREVIOUS


1. (U) The private prosecutor in the case of Lance Corporal
Daniel J. Smith (refs) on January 8 filed a petition with the
Philippine Supreme Court requesting that it "nullify" the
Philippine government's December 29 transfer of Smith to U.S.
custody and declare Article V paragraph 6 of the Visiting
Forces Agreement regarding custody as "unconstitutional."
The petition, which also sought Smith's arrest and return to
Philippine custody, argued that Philippine officials had
committed grave abuse of discretion in entering into an
agreement with the U.S. Embassy on the transfer.


2. (U) Approximately 60 anti-VFA protesters demonstrated
near the Embassy on January 8. Police dispersed the
demonstrators without incident.


3. (U) On January 7, Malacanang fired Visiting Forces
Commission Executive Director Zosimo Paredes, after he
publicly criticized the Administration's transfer of custody
to the U.S. Embassy without a court order as "taking the law
into their own hands." He also announced his intent to
resign. Malacanang Executive Secretary Ermita defended the
dismissal, stating that Paredes had taken a position
"contrary" to what the courts had ruled to be legal.


4. (U) Administration statements increasingly make clear that
calls to review the VFA should be deferred until after all
appeals in the Smith case are resolved, which is not expected
for some time. While Malacanang Press Secretary Bunye said
in a January 6 press statement that the government had
"resolved to review the VFA and would work with Congress to
amend certain provisions," Bunye later clarified that the
Philippine government was willing to reassess some provisions
of the agreement at a time deemed "mutually appropriate."
Executive Secretary Ermita separately stated that Malacanang
would not insist on a complete review of the VFA, but perhaps
would want to clarify the "extraordinary circumstances"
provision -- which provides that in "extraordinary cases" the
Philippine government may request custody of U.S. personnel.
Ermita commented that any such discussion could wait until
the Smith case is finally resolved. Presidential Legal
Counsel Apostol confirmed on January 8 that the VFA may
require review, but only after conclusion of the Smith case.


5. (U) Media coverage of the case has also softened, and a
number of less emotional, more thoughtful editorials on the
VFA have begun to appear. Some columnists are now focusing
on the larger national interests served in honoring
international commitments and on the positive role played by
U.S. forces under the VFA in strengthening Philippine
national defense and in aiding disaster-affected communities.
One anti-VFA columnist even provided space in his column to
his dissenters.

Visit Embassy Manila's Classified SIPRNET website:
http://www.state.sgov.gov/p/eap/manila/index. cfm

You can also access this site through the State Department's
Classified SIPRNET website:
http:// www.state.sgov.gov/










Jones