Starting on the wrong foot

Shocking indeed was the manner in which Smith was sprung out of the Makati City Jail. It has all the ingredients of a thrilling plot about the daring rescue of a prisoner by a special force organized for the purpose. Carrying it out in the middle of the night already indicates that it was a highly irregular and extraordinary operation where conventional rules and procedures are usually discarded. But this one is more shocking and unexpected because the "rescuers" received aid and support from elements within the very institution having custody of the prisoner and tasked with enforcing and safeguarding those procedures and rules. In short, it was a plot where the jailer and the detainee were part of the conspiracy to ensure the success of the entire operation to spring him out of detention, and its utter secrecy until it was all over. It seems so weird and outlandish except that in this country such strange and bizarre events are already considered ordinary.

Indeed this latest episode in the Subic rape case even borders on the comical and ludicrous. But it is no laughing matter because of its adverse effects on our Judiciary and our Constitution. The very sovereignty or jurisdiction of this Nation has been compromised, undermined and debased.

The United States and Smith, a member of its armed forces undoubtedly recognized the jurisdiction of our Courts. When Smith was accused of rape, he agreed to be tried by the Regional Trial Court (RTC) and to abide by all its orders and processes. After he was convicted, he again recognized the RTC’s authority to decide whether he should remain in the custody of the US military through the US embassy in Manila or be detained in our jail. In fact when the RTC, through Judge Benjamin Pozon ordered his detention in the Makati City Jail, he willingly obeyed, although he took steps to question the ruling for being in violation of the Visiting Forces Agreement (VFA) by going to the Court of Appeals; another unequivocal act of recognizing our judicial processes. By his actions Smith continues to recognize the authority of our judiciary to determine all issues concerning the validity of the VFA and the interpretation of its provisions. He thus acknowledges that his return to the custody of the US embassy needs an order from the court. So when he got out of the Makati City jail without any such order, he has made a mockery of our Judiciary and its power to enforce its writs and processes. The fact that it was with the consent and assistance of his jailer or the Philippine government does not mitigate the contemptuousness of his act. On the contrary it became worse because he became part of a conspiracy together with the US Embassy and our Executive Department to openly disrespect the judiciary, a co-equal and independent branch of our government.

There is no dispute that the Philippines should comply with its international commitments; that it should respect and follow the treaties, executive agreements and other international agreements it has entered into. There may really be no dispute also that the provisions of the VFA regarding the custody of Smith are quite clear enough. Nevertheless, it is also undisputed that said agreements, clear as it is, must be in accordance with our Constitution to be valid and binding. Any contract to be valid and binding between the parties must not be contrary to law, public policy, public order, morals or good customs. Nowhere in our system of laws are international agreements exempted from this general principle. In the case of the custody of US soldiers already found guilty of a crime punishable by reclusion perpetua like Smith, the evidence of guilt may be considered at least strong enough, if not beyond reasonable doubt since the decision is still subject to review. In such a case our Constitution is quite clear that they can no longer be released on bail or recognizance. Since Smith’s release to the custody of the US Embassy is in effect a release on recognizance, his further custody by the US Embassy pursuant to the VFA provision may already run counter to this Constitutional provision. While this matter is still debatable, it is not the Executive Department but the Judiciary which has the exclusive authority to resolve this issue with finality.

It does not really bode well that, at the start of the year we will be stuck again on a very controversial and divisive issue just because of an apparent pressure from a powerful nation.

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