COMMENT: Zero Respectability

From a shameful viewpoint, she exchanged national respectability for a beggar-almsgiver relations. What respectability is left to a country that barters the majesty of its courts and rule of law with military and economic assistance from a superpower? ZERO!

No matter how the President and her men would rationalize their midnight surrender to pressure from Washington, the infamy of their decision will confine them in the dustbin of history. To them, Philippine sovereignty weighs lighter than military and economic assistance, than the US concern for one soldier convicted of rape.

Treaty Obligation

The President’s men said that the Philippines must honor its treaty obligation under the VFA as expected by Washington. Why the Philippines only? Was Manila not expecting the US to honor its own obligation under the same treaty?

What is the treaty obligation of the Philippines? To allow the US to take custody of Smith until the completion of all judicial proceedings in the rape case.

What is the treaty obligation of the US? To commend or entrust Smith, if convicted, to Philippine authorities after the completion of the judicial proceedings in the rape case.

In the interest of a convicted US soldier, the VFA provides that the two countries agree on the place and facilities of the prison where the soldier will serve his sentence within Philippine territory. Not in the American Embassy grounds which is US territory.

Unjustified

After sentencing Smith to life (40 years) imprisonment for raping the young Filipina “Nicole”, Makati City RTC Judge Benjamin Pozon committed him to the city’s jail, ruling that all the judicial proceedings had already been completed.

The commitment however was temporary pending the agreement of the two governments where to jail Smith and until “further order of the court”. The conditions are clear: (1) there must be an RP-US agreement, and (2) Smith’s transfer must be by the order of the court..

Smith’s counsel appealed to the Court of Appeals Pozon’s custody ruling. The Secretary of Justice through the Solicitor General supported Smith’s position that “all judicial proceedings” is not yet completed as it includes the automatic review of the verdict by the Supreme Court.

Meanwhile, last December 22, US Ambassador Kristie Kenney and Foreign Secretary Alberto Romulo signed an agreement that Smith would be transferred to the Embassy Compound allegedly in compliance with Pozon’s order. Last December 29, at midnight by virtue of that agreement, Smith was transferred to the Embassy.

Smith’s transfer was unjustified. If the agreement were really in compliance with Pozon’s court order, it should have been left to the discretion of the appellate court — where the custody case was pending — for it to order Pozon to transfer Smith as agreed.

On top of the agreement, Malacañang said Smith’s transfer was for the good of the Filipinos. Because of that, the US reconsidered the cancellation of the 2007 Balikatan military exercises and preempted the possible cancellation of more military and economic assistance from Washington.

Preemption

Malacañang must have sensed that the Court of Appeals could turn down Smith’s appeal when it refused to issue a temporary restraining order. The December 29 midnight transfer was to preempt the court order for Smith to remain under Philippine jurisdiction.

Ruling on the custody case last Wednesday, January 3, the CA sustained Pozon. “The term ‘all judicial proceedings’ … refers to all trial court proceedings. That term is used in the descriptive sense, not in its all-embracing sense,” the court said.

Explaining, the CA said “that Smith may not remain further under US custody after completion of all trial proceedings because there was no longer any further obligation to hold and produce him for any investigative or trial court proceedings”.

Sovereignty

The appellate court said “that custody and jurisdiction are essential to sovereignty” and “allowing Smith to stay in US custody after the proceedings in Pozon’s court could leave Philippine justice empty-handed” since he would be “beyond the exclusive jurisdiction of Philippine authorities”.

The court stressed: “It may well be stated that it is not the physical layout of the agreed confinement or detention facility or the stringency of security, but the simple fact that it be run by Philippine authorities that make any such agreement fully compliant with the VFA and with our national law.”

There’s no second guessing. The CA could have denied Smith’s transfer to the US Embassy. But it declared the custody case “moot” – with Smith out of Philippine jurisdiction – bemoaning that being the weakest among the three branches of government it “can only soberly articulate that custody and jurisdiction are essential to sovereignty”.

The Honorable Way

While the CA said it had to defer to the wisdom of US Supreme Court Justice Oliver Wendell Holmes’ counsel “that the courts were better off not intervening in diplomatic issues”, the only honorable way for the US to do is to return Smith to Philippine authorities and honor its military and economic commitments.

The US doesn’t help its image by using such commitments to bludgeon a weak ally as the Philippines to sacrifice its courts and sovereignty to satisfy its ego. Diplomatic relations must be conducted on the true level of mutual respect.

President George W. Bush bowed to the US Supreme Court when it ruled that the creation of the military commissions he ordered to try detainees at the Guantamano Bay prison violated the US Constitution and the Geneva Conventions.

Like the US, the Philippine Constitution and courts are inviolable. That was what the Americans taught the Filipinos during their 40 years tutorship in democracy.

When the Philippine courts ruled that the interpretation of a provision of the VFA by Washington with the concurrence of Manila, obviously under duress, is wrong, Washington should bow to that ruling and return Smith under Philippine jurisdiction. That’s most honorable diplomacy.

Philippines’ zero respectability, in some way, also erodes US respectability.

("Comment" is Mr. Patricio P. Diaz' column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards recently honored Mr. Diaz with a "Lifetime Achievement Award" for his "commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.")