Wednesday, January 03, 2007

VFA Fallout: The Subic Rape Case Is A Political Issue

The Subic rape case is a political issue. It’s no longer a legal issue. The Philippine sovereignty is at stake. The problem is the negative credibility of great usurper Gloria Arroyo. Majority of Filipinos do not trust her. The president’s men arrogant lies and gung-ho manner in the transfer of convicted rapist Daniel Smith to the US Embassy is total disregard of separation of powers. Why the official transfer of Daniel Smith to U.S. Embassy came first before any court ruling? It should be court ruling first before actual transfer. Where’s the rule of law? National outrage is really mounting in this case.

Philippine bogus President Gloria Arroyo bowed-out to Uncle Sam’s demand in exchange of US military aid. She betrayed the Filipino people and Philippine sovereignty for 40 units of Vietnam war-vintage Huey helicopters and other military hardware. It’s the foremost duty of any government to its citizenry. The Arroyo government is a national disgrace for miserably failed to protect its citizens locally and overseas.

The U.S. is pressuring on small, vulnerable, impoverished states that are hugely dependent on military, economic, political assistance from the United States. Uncle Sam treats Filipinos as little brown brothers not co-equals even after full independence in 1946. Gloria Arroyo’s credibility has eroded since she grabbed power in 2001 and cheated in 2004 presidential election. GMA ruled the country thru deceit, cronyism and political accommodation. Gloria’s Judas' 30 pieces of silver won’t make dent in fight against poverty and insurgency.

CA cops out, moots Smith case, upholds Pozon ruling

By Benjamin B. Pulta

Daily Tribune 01/04/2007

A ruling by the Court of Appeals (CA) has turned down the suit filed by lawyers of convicted rapist American Lance Cpl. Daniel Smith and upheld the ruling of the Makati Trial Court Judge Benjamin Pozon, saying he did not commit grave abuse.

The CA, however, said the controversy over the custodial issue has become moot following the Marine’s clandestine’s transfer to the US Embassy over the holidays.

In its 38-page decision,the CA’s Special Sixteenth Division through Associate Justice Apolinario Bruselas Jr. said in part allowing Smith to stay with the Americans after proceedings in the trial court may leave Philippine justice empty-handed.

“His (Smith’s) remaining in US custody will keep him beyond the jurisdiction of Philippine authorities who have exclusive jurisdiction over him with respect to the offense that he has committed,” the decision said in part.

Around 20 protesters from the pro-women group Gabriela trooped to the gates of the Justice department (DoJ) beside the CA

yesterday barely an hour after news of the decision was reported. A handful of policemen also barricaded the area.

Two other magistrates, Josefina Guevara-Salonga and Fernanda Lampas-Peralta concurred with the ruling which also pointed out that Judge Pozon did not act whimsically in ordering Smith’s detention in the city jail temporarily.

The appellate court however underscored that the case is moot. “Conformably with the wise observation that the other branches of government are equally the ultimate guardians of the liberties and welfare of the people, we resolve to consider the matter treated in the petition moot.

“It may as well be stated that it is not the physical layout of the agreed on confinement or detention facility, or the stringency of security but the simple fact that it be run by Philippine authorities that makes any such agreement fully compliant with the VFA and with our national law.” the tribunal added referring to the agreement signed between the Foreign Affairs department and the US embassy allowing Smith’s detention in the Rowe Building inside the embassy compound.

The CA decision stated there had been no grave abuse of discretion on the part of the Makati judge in rendering the decision for Smith’s conviction and his subsequent commitment to the Makati City Jail.

“In the case now before us, we note that the respondent judge heard the petitioner on his proposition. He also heard the prosecution on the issue of custody. It was only after hearing them that the respondent judge maintained his original order of commitment.”

The appellate court pointed out that under criminal law and procedure, a judgment of conviction that imposes the penalty of imprisonment above six years is immediately followed by an order of commitment to the appropriate detention facility.

“Given the foregoing behavior of the respondent judge, we cannot say easily that the issuance of the questioned orders had been attended by whim, caprice or arbitrariness.”

The court said it “does not see a clear disregard of any settled jurisprudence that bears on the issue.”

The tribunal also said the ruling that the treaty provision allowing the US embassy to keep custody in all judicial proceedings means only proceedings while it is before the lower court and not when it is already on appeal.

“The term all judicial proceedings...refers to all trial court proceedings. The term is used in its descriptive sense, not in its all embracing sense.”

The CA also said the Smith may not remain further under custody by US authorities after completion of all trial proceedings because there is no longer any further co-relative obligation to hold and produce him for any other investigative or trial court proceedings.

“His remaining in US custody will keep him beyond the jurisdiction of Philippine authorities who have exclusive jurisdiction over him with respect to the offense that he has committed .

“It may have been in this light that the order of the respondent judge to temporarily commit the petitioner to the MCJ (Makati City Jail) was issued.”

All judicial proceedings meant all proceedings at the trial court, the appellate court said because “under Philippine law, it is the judicial proceedings at the trial court level that are held in open court. Appellate procedure under Philippine law does not require the presence of the accused nor of witnesses.”

Despite the clear ruling of the CA upholding Pozon’s decision and its warning that the Philippine justice may be left empty-handed with the US government now taking custody of Smith, Malacañang yesterday claimed it felt vindicated over the CA decision that rendered moot and academic” the government petition.

In a press briefing in the Palace, Department of Justice Secretary Raul Gonzalez said the CA merely recognized the actions taken by the Executive Department to have Smith returned to the US custody on the basis of the Visiting Forces Agreement (VFA), which had been forged by both countries.

Gonzalez assured the public that even if Smith is detained at the US Embassy, there have been no negotiations that the convicted rapist would be transferred to other countries where the US has military bases such as in Okinawa, Japan.

Gonzalez said US Ambassador Kristie Kenney assured the Arroyo administration that once the Supreme Court (SC) comes out with a final verdict that convicts Smith on rape charge, they would cooperate in the transfer of the US Marine at the New Bilibid Prison, in Muntinlupa City.

“His (Smith) detention (at the US Embassy) was just temporary,” he stressed.

For his part, Executive Secretary Eduardo Ermita said the President was relieved and felt vindicated over the CA ruling saying Americans were also happy over her administration’s move to have Smith transferred to the US embassy.

“We must remember that a nation stands by its leader. Our leader must be believed, perceived credible, competent and has political will to exercise harsh decisions. It is not an issue over how she (Mrs. Arroyo) makes it in surveys (public approval ratings),” he said.

“Remember the US is a good ally, a super power. Since the Second World War the US stood by the Philippines in assisting us either in military or political developments. Why should we not enhance such relationships when both governments are only fighting for the compliance in the VFA agreement,” he added.

Ermita said if Mrs. Arroyo did not take the necessary moves, the Philippines would be placed in a bad light before the international community which had been watching the situation.

“What is important is respectability that the Philippines as a nation will gain if we do not take this action... other countries with whom we’re talking to such as those in the Asean (Association of Southeast Asian Nation) and OIC (Organization of Islamic Conference) would have a second look... because they were asking... are we going to sign an agreements with the Philippines when things written (with the US ) are not being complied with?... That is why our President was vindicated... Look! Within 48 hours the US government made a decision to resume the (RP-US) Balikatan exercises (that were earlier been suspended),” he said.

“(Prior to Smith transfer of custody) everybody was watching... I don’t know how many (foreign) embassies we have here in the Philippines that were watching... but everybody is watching... they’re watching what our government actions would be... our credibility as a nation,” he added.

Ermita confirmed that they have met with Kelly recently to assure the US government that the Philippines would comply with the VFA agreement.

Ermita said the Palace expects a backlash from the Filipino public over the President’s action, but it is confident that proper information dissemination would water down public resentment.

Meanwhile, the Department of Foreign Affairs (DFA) virtually admitted yesterday that the Philippine government was pressured into releasing Smith from a local jail as it said the country stands to lose millions of dollars worth of aid from the United States.

Rafael Seguis, DFA Undersecretary for Special Concerns, said the Philippines “has lots to lose” if the custody issue was not resolved.

“This is a sigh of relief,” Seguis told a press conference. “There has been vindication. The action has been vindicated by the decision taken by the Court of Appeals.”

With the government’s decision, Seguis said it has averted the US pullout of several aid projects in the country.

“We have advantages and benefits to gain in the Balikatan. Under the program, we have this security assistance program to train units of the Armed Forces of the Philippines, we have humanitarian assistance the civic action and civic projects,” Seguis said.

Also scheduled under this year’s Balikatan civic project is the construction of three school buildings Jolo with a US allocation of $220,000, Seguis said.

“Apart from the Balikatan benefits, there is also other assistance extended to other agencies of the government the Department of Interior and Local Government (DILG) for instance, to the National Bureau of Investigation and other agencies of the government,” Seguis said.

“Well, certainly under strained relations all these will be jeopardized,” he noted.

Seguis also believes that the Philippines would have suffered in the long term. The US is the Philippines’ number one trading partner.

Meanwhile, Seguis said the Philippines is open to the review of the Visiting Forces Agreement.

“We have telegraphed our desire to review the VFA but…after this case is resolved,” he said. With Michaela P. del Callar and Sherwin C. Olaes

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