POSTSCRIPT / January 2, 2007 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

Share on facebook
Share This
Share on twitter
Twitter

GMA's springing Smith insulted entire judiciary

FUMBLE: Since her legitimacy as president was questioned in 2004, the harassed wife of Jose Miguel Arroyo seems to be losing her presidential poise.

From her precarious perch, President Gloria Arroyo issued one defensive order after another limiting the battle options of the opposition and her critics — only to see her decrees struck down by the Supreme Court as unconstitutional.

The latest fumble was her stealthily transferring in the dead of night last Friday an American rapist detained at the Makati City jail to the safety and comfort of the US embassy, which is technically American soil.

The legal question of custody — over the person of US Marine Lance Cpl. Daniel Smith who has been convicted of raping a Filipina — can be argued either way. It is the proper subject of a judicial process, not a matter left to the sole discretion of the Executive.

* * *

GMA THE GOV’T?: For President Arroyo to arrogate upon herself a function reserved for the court — which is to decide a question of law — was unfortunate.

The explanation of Malacanang and the US embassy was that “the government” decided and then transferred Smith to the custody of the US mission in Manila.

But the President is not “the government.” She is, in a manner of speaking, just a third of the government, the bigger balance of which is shared by the Legislative and the Judiciary.

She may be the sole spokesman of the country in foreign relations, but the case of Smith is not foreign relations. It is the prosecution of a criminal act.

* * *

OVERREACHING: The rape — a criminal act committed on Philippine soil by an off-duty Marine against a Philippine citizen in violation of Philippine laws – involves simple court litigation.

Even the accused and his government had acknowledged this by submitting to the jurisdiction of the Makati City Regional Trial Court.

The litigation, to stress the obvious, is ongoing. The case is still in the hands of the court, certainly not in the hands of the President.

President Arroyo was overreaching when she plucked the convict from his court-ordered detention and then delivered him to the haven of his country’s sovereign territory.

That is not only contempt of court, but a bad example made by one sworn to “ faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man.”

In fact, the President’s own chief legal adviser Sergio Apostol said in advance that what she was about to do was in contempt of court. They knew it, but she did it!

* * *

SHAMING PEOPLE: What is happening to our President?

Assuming Makati RTC Judge Benjamin Pozon was in error when he ordered Smith detained at the Makati jail in the meantime, springing the convict in the tradition of the US Wild West was not exactly an exemplary way of correcting the error.

Shaming the judge, nay, the entire judicial system, was the best option that President Arroyo had?

The rape case was a court matter, not something pending on the desk of the President.

Especially in this country, you do not shame people into submission. You do not humiliate them, if you want to work out a settlement or resolution acceptable to all parties to a controversy. You leave space for one’s not losing face.

The President, as the model citizen, should have allowed the court to correct itself in the course of the usual due process, if indeed it was in error.

* * *

FATE SEALED?: If Judge Pozon was wrong — still a big “if” — he would realize it upon review or upon his reversal by a higher court. He and the rest of the judicial system should have been given an opportunity to correct himself/themselves.

The kidnapping of Smith did not correct the court “error.” On the contrary, it complicated the case. It left vital issues hanging, leaving a messy sight with Ms Arroyo’s bloody fingerprints all over.

In fact, the kidnapping may have just sealed the fate of Smith, instead of later releasing him an innocent man on appeal.

Now the youth and his lawyers will have to perform the difficult task of overturning the guilty verdict handed down after a public trial where he was given the opportunity to defend himself.

The powerful forces that had wanted to help him by insulting the court and the entire judicial system may have made his eventual acquittal even more difficult.

* * *

SENATORS ESTOPPED?: We noted that the President is, in a sense, just a third of “the government,” with the rest of the establishment shared by the Judiciary and the Legislature.

How come there is an unusual quiet in the Congress, most especially in the treaty-ratifying Senate?

The bizarre twist in the case may have confounded many of the senators. Some of them may feel having been estopped after the chamber voted for ratifying the RP-US Visiting Forces Agreement in May 1999.

The controversy over the custody of the wayward serviceman would not have arisen if the senators insisted on making crystal clear that provision on criminal jurisdiction. But, no, having been stampeded into voting Yes, the Senate ratified it without that crucial clarification.

* * *

GARBAGE: So now we are confronted with such a question as: How come in a similar criminal case in Japan, the American GI accused of raping a native is detained in a Japanese jail while his case is being heard?

Why are Filipinos being treated differently? Just because the US gives us aid we allow it to treat us like garbage?

How will our honorable senators answer those questions?

Maybe what some senators and some critics of the VFA could do is use the Smith case as a cause or basis for raising once more the prior question of the VFA being unconstitutional.

That would require the overturning of the Supreme Court decision in G.R. No. 138570, dated Oct. 10, 2000,declaring it to be constitutional. But the SC — especially one under Chief Justice Reynato Puno who led the justices who voted against the VFA — can always change its mind.

* * *

NOT A TREATY: One point that can be raised against the VFA is that it does not satisfy the “(must be) recognized as a treaty (by the US)” requirement of Section 25 of Article XVIII (Transitory Provisions).

This section of the Constitution that applies to the VFA provides: “…(F)oreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate, xxx and recognized as a treaty by the other contracting party.”

That the VFA was not ratified as a treaty by the US Senate is a fact. The VFA is a mere Executive Agreement to the US, although they are now saying that treaty or not, it is binding on them.

Of course it should be binding on them. But whether they are committed to it or not, is beside the point.

The point is that it does not satisfy the constitutional requirement specifically written into the Charter to govern agreements, such as the VFA, on the status of foreign forces on Philippine soil.

* * *

NOW WIDE OPEN: If the VFA is unconstitutional, the consequential questions, including those on jurisdiction and custody as in the Smith case, would fall by the wayside.

An opportunity such as that presented by the Smith case to raise again the prior question of constitutionality may not happen again. We should grab that chance and settle that basic constitutional question once and for all.

That point over custody could have been glossed over, but the President’s high-handed violation of the traditional courtesy among the three branches of government and her seeming subservience to foreign interests — against the interests of Filipinos — have thrown the matter wide open for review.

* * *

(First published in the Philippine STAR of January 2, 2007)

Share your thoughts.

Your email address will not be published.