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thedrifter
01-08-07, 08:30 AM
OPINION
US tempts fate once too many

Eloisa Felicio Callender

08-Jan-07

ON NOVEMBER 1, 2005, All Saints Day in the Philippines, a not-so-saintly United States Marine raped a Filipina acquaintance after a night of drinking. Lance Coporal Daniel Smith of St Louis, Missouri claims it was consensual sex but the facts tell otherwise. "Nicole", the alias given to the victim to protect her identity, was raped in the back of a van by Smith who admitted to having sex. Inside the van were three other US Marines who purportedly cheered, "Go, go, Smith!", during the rape. Minutes later, Nicole was dumped on a roadside in front of shocked bystanders, her pants around her knees and a condom stuck to her panties. Consensual sex?

The year-long saga that dominated headlines in the Philippines ended on Dec 4, last year when Smith was found guilty of rape and sentenced to 40 years in prison. Smith was temporarily detained in a small office in a local city jail until both governments could agree, as required by the Philippine-US Visiting Forces Agreement (VFA), in which detention facility he will serve his sentence.

Events took an interesting turn on December 29 when both Philippine and American governments violated the order of the judge and, in the middle of the night, sneaked Smith out of jail and reverted custody to the US Embassy in Manila. The explanation? It's what the two countries agreed on. Never mind that the judges order was for Smith to serve his sentence in a facility run by Philippine authorities and under its control and jurisdiction, as required by the VFA. Since the US Embassy was so intent on violating the order, why didn't they send the rapist to Club Med? Its not under Philippine jurisdiction either.

It's important to note that Smith was accorded a fair and prompt trial with legal assistance from the best lawyers in the country. This is not a quarrel over Smith's guilt or conviction. This fight is about who should have custody of him while on appeal. The US maintains that the VFA gives custody to the US until all judicial proceedings, including appeals, are complete. The Philippine judge ruled that the proceedings were over with Smith's conviction. He is free to appeal while in jail. Under Philippine law, capital offences, including rape, are non-bailable when evidence of guilt is strong.

The disagreements are expected to crawl through the courts but the transfer _ some say escape _ of Smith to the US Embassy has effectively put him beyond the control of Philippine authorities. As any American kid can tell you, possession is nine-tenths of the law. But the fait accompli may prove to be a Pyrrhic victory, or, as President Bush once said, a catastrophic success, now that it has angered legal scholars who plan to fight the case all the way to the Philippine Supreme Court.

The US had better tread carefully because the renewed scrutiny of the VFA is expected to resurrect questions about its constitutionality that the US may wish it has not caused to be revisited.

American military presence in the Philippines violates that country's constitution and the US is playing dumb about it. The US constitution is very clear on what makes a treaty: no Senate concurrence, no treaty. Yet the VFA was never ratified by the US Senate. Why is this important? Because our friends on the other side of the Pacific have a constitution that says foreign forces are only allowed on their soil under a treaty recognised as a treaty by the other contracting state.

The requirement, written after the People Power Revolution ousted President Ferdinand Marcos, was to prevent future presidents from unilaterally entering into executive agreements of such import and to assure such treaties are accorded equal importance and treatment by the other country. The US, in effect, is invoking treaty rights under a mere executive agreement. And because the VFA was not recognised as a treaty by the US as required by the Philippine constitution, the VFA is unconstitutional under Philippine law.

These were the same arguments made by petitioners to the Philippine Supreme Court in 2000 asking it to nullify the VFA as unconstitutional. In dismissing the petitions, the Supreme Court said the petitioners had no legal standing as aggrieved parties and that even if the US treats the VFA only as an executive agreement, it still is binding as a treaty.

The Supreme Court erred on an important point. The question was whether the VFA as an executive agreement was constitutional, not whether it was binding.

The same issue will likely be raised again but the playing field is different this time. The justices will be reviewing the issue not as a hypothetical but as an actual case with demonstrable harm to the victim, the country's sovereignty and constitutional integrity. As a rule, treaties do not trump a sovereign nation's constitution. When treaty obligations violate a country's sovereignty or conflict with its constitution, the constitution prevails.

The US should have quit while it was ahead. It already scored big with the acquittal of the three other cheer-leading Marines _ an acquittal that even Americans admit would have been impossible in the US. Instead, it fights for what seems a lot of risk for little gain, prompting the rape victim to comment that what's great about America is that they know how to protect their criminals. She wouldn't have been out of line if she added that some Philippine officials seem eager to protect American criminals, too.

But is the US keeping its head down? No. In fact, it cancelled war games with the Philippines to signal its displeasure over the custody row. Many Filipinos see this as arm-twisting, given the dependency of the Philippine military on US assistance. Within days of Smith's transfer to the US Embassy, the military exercises were back on schedule. The kind of bully democracy the US is practising in that country will not earn it points. In 1991, the Philippine Senate kicked the US military bases out of the country. The US is tempting fate this time by flouting the Philippine judiciary.

Eloisa Felicio Callender is a US-based Filipino writer.The Philippine Daily Inquirer

Ellie