(Photo by Paul Schutzer, “American Soldiers Coming Ashore During the Vietnam War”. LIFE Magazine collection.Right-clicked from www.allposters.com, used here for non- commercial purposes, under the terms of , free service by blog-use of image provided by said site.)
(In the interest of full disclosure of a possible conflict of interest, the Public Interest Law Center to which the blog admin belong, handled the case Bayan et al vs. Executive Secretary, in 1999-2000, challenging the constitutionality of the Visiting Forces Agreement filed ten hours after the VFA was ratified by the Senate (the VFA was ratified by the Senate at 10pm; at 8am we were at the Supreme Court, oral arguments nine months later); the PILC and the clients asked blog admin to handle the litigation and oral arguments.)
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will try to write this in layman’s language and as plain as possible, so even a 3-year- old Filipino could see the dire implications pointed out by two dissenting justices in the Supreme Court (with two more: four dissented), Chief Justice Reynato Puno Jr. and Justice Antonio Carpio, in the decision handed down yesterday by the Supreme Court voting 9-4 upholding again the VFA and and the majority (9-3 with then Justice Puno dissenting) in Bayan vs. Executive Secretary (I will try to excerpt their dissents in the next few days; ….my new internet connection is down! I’m on borrowed time. Again.)
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The convicted rapist, Daniel Smith, is now on U.S. soil.
He has been in U.S. soil since December 29, 2006, a holiday, when he was spirited away by personnel of the DILG and U.S. secret service personnel, based on a “Romulo-Kenney Agreement”, and brought to the U.S. Embassy on Roxas Boulevard.
Now, you ask me: Why are you saying he’s on U.S. soil when he is on Roxas Boulevard?
Under international law, the area occupied by sovereigns as embassies by agreement form part of their territory. The U.S. Embassy premises form part of the territory of the United States.
Therefore, since Dec. 29. 2006, we surrendered jurisdiction (okay, the DFA will say, only physical jurisdiction) over the convicted rapist Daniel Smith.
(why do you think there was a lot of wailing and gnashing in a blog post here on Dec. 29, 2006. See re-issue of that post below this post)
The new American cases cited by Chief Justice Puno and Justice Carpio (Medellin case, etc. ) are therefore very relevant and pivotal in determining the outcome of this case.
In those American cases, the Bush government ignored decisions of the International Court of Justice, and ignored the provisions of the Vienna Convention on Consular Relations.
Excerpt from Chief Justice’s informative dissent: “International Court of Justice (ICJ) issued its decision in the Case Concerning Avena and Other Mexican Nationals (Avena). The ICJ held that the U.S. violated Article 36(1)(b) of the Vienna Convention by failing to inform 51 named Mexican nationals, including Medellin, of their Vienna Convention rights. The ICJ ruled that those named individuals were entitled to a review and reconsideration of their U.S. state court convictions and sentences regardless of their failure to comply with generally applicable state rules governing challenges to criminal convictions.
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The U.S. Supreme Court ignored the ICJ decisions:
Excerpt from Chief Justice’s informative dissent: “It (the U.S. Supreme Court) held that while an international treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is “self-executing.” It further held that decisions of the ICJ are not binding domestic law; and that, absent an act of Congress or Constitutional authority, the U.S. President lacks the power to enforce international treaties or decisions of the ICJ.”
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Therefore:
(Excerpt from the Chief Justice’s dissent): “The Avena judgment (in the International Court of Justice) creates an international law obligation on the part of the United States, but it is not automatically binding domestic law because none of the relevant treaty sources—the Optional Protocol, the U.N. Charter, or the ICJ Statute—creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted”
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Excerpt from the CJ dissent: “The new ruling is clear-cut: “while a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis.”[19]
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(As I said, I will elaborate when I could get back my internet connection).
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The implications of the U.S. cases elucidated upon by Chief Justice Puno and Justice Carpio are (I’ll try to make this as plain as possible):
1) The Medellin case applies; the convicted rapist is now on U.S. soil, and because (next paragraph):
2) The VFA as an international obligation, following the Medellin case, is not binding within United States territory unless a domestic law (a statute passed by the U.S. Congress) is passed by the U.S. Congress
3) My opinion: The U.S. Embassy knows that as long as Daniel Smith is on U.S. soil, U.S. law is on their side as shown by these cases.
4) Therefore (my opinion), they’ll be advised by their lawyers that the VFA is not binding anyway as far as all creatures and objects within U.S. territory (which includes the premises of the U.S. Embassy), following the Medellin case, because no domestic law had been passed.
The worst immediate possible consequence of this is: The U.S. Embassy will not surrender the convict. If the People (prosecution ) want him back, the People will have to succeed either in: diplomatic negotiation through the Macapagal-Arroyo government (who surrendered him in the first place), or, succeed in litigating this in the United States Supreme Court.
The People will have to litigate this in the U.S. to get an injunction commanding the U.S. Embassy to return Daniel Smith to Philippine territory (if you’re able to get such an injunction), unless the U.S. Embassy on its own or through diplomatic negotiations, returns him.
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Dec. 29, 2006 blog post: RE-ISSUE (wailing and gnashing)
THE LAND OF LAWLESSNESS
Territorial jurisdiction can be waived only by law or by treaty (not executive agreement) duly ratified and concurred in as treaty by both parties, and it is the courts that are authorized to interpret the provisions thereof. Not even the President can waive the jurisdiction of our courts. Only through a duly enacted law or treaty (not executive agreement) as interpreted by the court can that jurisdiction be waived.
Everybody’s on vacation and so in the dead of the night, the Philippine executive officials and the American diplomatic officers sprang convicted Lance Corporal Daniel Smith out of prison. Violating all law.
Gloria Macapagal-Arroyo does not care about our criminal laws because she is immune from suit while president. But only while president. The crimes people want to charge her with do not prescribe by 2010.
So… what does one do while enjoying immunity? Why, violate the laws, what else.
George Bush, the most powerful man in the most powerful country in the world, exerted pressure on our judiciary when he told the Philippine ambassador: “We want custody of our boy.” He is outside the jurisdiction of our courts and of course enjoys immunity; Judge Benjamin Pozon obviously cannot and will not cite him for anything, ordinary folks like you and me and the judge follow the law in these parts.
U.S. Embassy spokesperson Matthew Lussenhop and all those diplomatic officers who spirited the convicted soldier away, also enjoy immunity. And as officials who enjoy immunity, they don’t care about the laws in this country unless one of their own is being held for violations of our penal code.
There’s a little-known law called the Revised Penal Code. It provides:
“Art. 223. Conniving with or consenting to evasion. Any public officer who shall consent to the escape of a prisoner in his custody or charge, shall be punished: 1. By prision correcional in its medium xxx if the fugitive shall have been sentenced by final judgment. 2. By prision correccional in its minimum xxx in case the fugitive shall not have been finally convicted but only held as a detention prisoner for any crime or violation of law xxx .”
“Art. 241. Usurpation of judicial functions. The penalty of arresto mayor xxx to prision correccional shall be imposed upon any officer of the executive branch pf the Government who shall assume judicial powers or who shall obstruct the execution of any order or decision rendered by any judge within his jurisdiction.”
(This is not to mention contempt of court under the rules of court, which has a penal sanction).
Who cares? They’re just laws.
Americans complain about the lack of order in this country when they’re applying for permits or negotiating the traffic; their media commentators sneer when we overthrow presidents and mock people power as mob rule. But see. Their own officials are the first to violate the laws in this country and the first to protect felons as long as those felons are theirs.
The President, the DOJ secretary, certain state prosecutors, congressmen of the ruling parties, the DOF officials, the Bureau of Jails, the DILG, Comelec officials, have been flouting our laws for three years now.
They have lost all basis to demand obedience of the laws from ordinary folks, pedestrians, working people, the impoverished. This government governs only by force, brazenly. Imperviously, and intractably. It is hanging by a thread that will snap, when all of us decide, at exactly the same time, that it should not stay a minute longer; when all of us see it all at the same moment and get angry all in one beat, and march out; four days is all it would take to take out this regime and 30,000 around Malacanang supported by millions in the provinces, do not talk to me about the rule of law and of obeying the laws, because this government has lost all authority to exact obedience having been the first and being the interminable violator of those laws, stop preaching about the Constitution because when the nation rises as one it is the supreme law, and if they use bullets, our friends, parents, spouses, siblings, will take our place on the asphalt, and if they use more bullets, townsfolks, urban dwellers, those who have retired, those in the sidelines, those waiting for a signal, will take their places, in greater numbers this city will fall.
It’s time for this government and the powers that support it, to go.
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ANOTHER RE-ISSUE: Dec. 6. 2006
JUSTICE
First day of school in law school and Prof. Haydee Yorac tells her class: “Let justice be done, though the heavens may fall,” which was her favorite saying.
Today, the court will promulgate the decision in People vs. Carpentier, Smith, et al, for rape, or what the press calls the
Subic rape case. The street protestors have been quoted in the media as saying that they have pompoms with them to celebrate a guilty verdict ,and protests in case of an acquittal.
The people’s organizations who supported the complainant in this case should be acknowledged and congratulated because were it not for their support, the complainant might have faltered; there might have been less public attention, that is all-necessary when you are up against powerful interests.
But they miss the point when they say they are prepared with their pompoms and cheerleaders’ accessories in case of a guilty verdict.
Whether the verdict is guilty or not, the accused will never be punished here. The Philippines will never have custody of any American soldier convicted of a crime within Philippine territory; our criminal justice system will never be applicable to foreign soldiers sojourning in the country under the Visiting Forces Agreement.
This was not a lesson in justice. There was never any.
This was a lesson in the unequal relations between the Philippines and the United States.
This was a continuing lesson in the continued subservience of the Philippines to U.S. foreign policy.
And this is a lesson that might never be learned by this generation if we continue to fail to assert our right to be treated as a sovereign country.
While the judge here should decide the case blind to color, race, and creed, and issue a verdict based solely on the evidence; there was never a test here of the criminal justice system because from the beginning, that system was never applied to the American soldiers, when the accused were never detained in a Philippine jail and subjected to bail hearings while under detention, a process that any person accused of a capital offense in this country has to undergo.
There will never be any punishment for those found guilty, and no justice for our countrymen as long as the legislators, the executive branch, the Supreme Court, and the nation, fail to see that the unequal relations established under the Visiting Forces Agreement need to be reviewed. There were never any tests here and we continue to be the little brown American brothers and sisters that we have always been, in the last one hundred years.
Until there is equal treatment for those accused and those found guilty, justice will not be done because the superpowers might fall.
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(in the interest of full disclosure, again, please see blog entry entitled “Disclosures”. thanks.)
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