POSTSCRIPT / December 31, 2006 / Sunday


Philippine STAR Columnist

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Smith's stealthy transfer leaves political, legal mess

PALACE HAND: Malacanang telegraphed its intentions early last week on the custody of US Marine Lance Cpl. Daniel Smith when it vowed to abide by whatever ruling the Court of Appeals hands down on the soldier’s plea to be returned to the US embassy.

By promising obedience, the Palace betrayed that it knew the CA would rule in favor of the US embassy’s bid to resume custody of Smith then being held at a local jail on orders of the Makati City Regional Trial Court.

But American pressure must have been so intense that the Palace decided to act on its own before supervening holidays delay further the expected favorable ruling of the appeals court.

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POLITICAL SHORTCUT: Laying the basis, presidential chief legal adviser Sergio Apostol opined that President Gloria Arroyo could order on her own Smith’s transfer to the US embassy.

Normally, it is the justice secretary who issues such made-to-order legal opinions, but Justice Secretary Raul Gonzales had compromised his credibility by spouting pro-American pronouncements too often.

With Apostol on the job, Gonzales distanced himself from the scene of the impending transfer by going abroad.

What was left at the Makati jail was a legal and political mess. The court still had physical custody of Smith when he was sprung the other night. Yet without either the Makati RTC or the CA ordering his transfer, he was bodily taken away in the dead of night.

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NO COURTESY: Apostol pointed out yesterday that Makati RTC Judge Benjamin Pozon had said that Smith would remain at the Makati jail until there was an agreement between the Philippines and the US on his custody.

Since the two countries have signed an agreement for his transfer to the embassy, Apostol said, the transfer — which looked like a rescue to some observers — was in compliance with Pozon’s decision.

If that requirement had indeed been met, why did not Malacanang wait for the court itself to order Smith’s transfer? If due process could be brushed aside by an impatient Executive, what about courtesy?

The coming holidays must have added to the pressure to snatch Smith from Makati before the year ends.

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LEGAL SHIELD: A number of public figures caught in legal complications have chosen to run for a seat in Congress, it seems, as a way out of their predicament.

Such phenomenon tends to validate the observation that a congressional seat is the ultimate political weapon, legal shield and business tool.

There is something about being senator or congressman that makes one virtually untouchable. While a congressional post does not make the holder any more respectable, it confers on him a kind of immunity that ordinary Filipinos do not have.

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HELLO, GARCI: Former Comelec Commissioner Virgilio Garcillano — accused of having collaborated with Malacanang to ensure an insurmountable lead for President Gloria Arroyo in the 2004 elections — has been cleared by the justice department.

A clearance from the justice department is, in the minor world of ordinary Filipinos, the equivalent of a state prosecutor dismissing a criminal complaint after a preliminary investigation.

That clearance should be relief enough, but for added insurance against being hounded by the opposition or any aggrieved party, Garci — as he has come to be called – is threatening to run for a congressional seat in his home province of Bukidnon.

Garci sounds and looks like he wants to prove something.

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ESCAPE ROUTE: Such a political escape route, as it seems to be, is a well-traveled path.

There is thinking in some sectors that election to public office erases or condones – or, at the very least, makes light of — any prior wrongdoing.

Some elective officials accused of errant behavior insist that if they run for reelection and win, their victory is a vindication showing the people directly clearing them of any liability.

My thinking is that in an election where an official’s supposed wrongdoing was a campaign issue, his being reelected may preclude administrative sanctions but not necessarily wipe away his criminal liabilities.

An election is a political exercise, not a criminal procedure. It is not a part of the judicial process. Neither is an election a sort of jury hearing where liability is determined by one’s peers or constituents.

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IMMUNITY: Legitimate parliamentary immunity is conferred on lawmakers by the Constitution.

Section 11 of Article VI (The Legislative Department) provides: “A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.”

That is clear enough for most people, including those seeking a congressional seat.

The immunity conferred is specific and limited. But that is no problem, as lawmakers could be creative.

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CASE STUDIES: Running for Congress to gain protection is commonplace.

A big businessman seeing his family’s multibillion-peso business empire showing signs of crumbling may just decide to run for Congress.

Blocking tax investigations, collection and foreclosure suits, and gaining tariff protection is easier when one is a key member of Congress. Imagine what one could do if he were, say, Speaker of the House or President of the Senate.

A coup plotter afraid of the backlash of his having inflicted untold damage to the economy may just decide to grab a Senate seat for protection. To win, he could latch on to the dadag-bawas operations of a veteran politician willing to coddle him.

In the case of wives and children afraid of being dragged into major cases of a high-profile member of the family, one recourse open to them is to seek a Senate or House seat as a legal and political shield.

The successful candidate for a congressional seat is thus able to gain political and legal immunity, and a business weapon to boot, well beyond the immunity promised by Section 11, Article VI.

As bonus, they gain access to hundreds of millions in public funds without having to work for them.

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U.S. CONSENSUS: Analysis of recent survey data shows that while US political leaders may still collide over contentious issues despite their promise to work together, the American public is actually moving toward a consensus on the same issues.

Some of the more delicate questions deal with the conduct of the war in Iraq, the best way to contain Iran’s nuclear ambitions and how to deal with the North Korean nuclear threat.

A wide-ranging analysis by of polls from several organizations reveals substantial agreement across party lines on many of the most contentious issues.

The analysis shows that Americans generally support the key recommendations of the Iraq Study Group regarding the withdrawal of US troops and talking with Iran and Syria.

The study being cited includes a newly-released poll (conducted Dec. 6-11) and other recent surveys by Networks. It also analyzes polls by the Chicago Council on Global Affairs and other organizations.

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COMMON GROUND: Steven Kull, editor of, said the study showed that sometimes it is easier for the public to find common ground than it is for politicians.

These are some examples of areas where bipartisan consensus is emerging:

On the Iraq war – WPO’s new December poll finds that majorities favor withdrawing almost all US combat troops from Iraq by 2008 (Republicans 62%, Democrats 88%) and that they believe the US government should clearly state it does not want permanent bases there (Republicans 65 percent, Democrats 81 percent).

Americans support talking with Iran about the problems in Iraq (Republicans 72%, Democrats 81%) and also talking with Syria (Republicans 72%, Democrats 82%).

Large majorities are in favor of holding an international conference to discuss how to stabilize Iraq (Republicans 79%, Democrats 80%).

On the Israeli-Palestinian conflict—WPO’s December poll shows that Americans believe the US should not take either side in the conflict between Israel and the Palestinian territories. (Republicans 58%, Democrats 80%).

On the North Korean nuclear threat — Majorities in both parties think the US should offer to give North Korea security guarantees (Republicans 61%, Democrats 82%) if the government in Pyongyang is willing to eliminate its nuclear weapons.

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(First published in the Philippine STAR of December 31, 2006)

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