Postscript to Smith: Falsification?

Just when we thought all the arguments had been laid bare in regard to the pros and cons of the custody of US Marines Lance Corporal Daniel Smith (remember him?), we get a call from former Senate President Jovito R. Salonga.

Naturally, having gone through law school with the scholarly books of the good Senator on public and private international law as prescribed texts, whatever he had to say about the Smith legal controversy was something I would listen to, with great interest!

In an agitated state, Sen. Salonga said the quotation from US Supreme Court Justice Oliver Wendell Holmes, used by Court of Appeals Justice Apolinario Bruselas in dismissing of the Smith petition "for having become moot," was "doctored and falsified." No matter how one cut it, that was quite a charge!

It will be recalled that in the CA decision penned by Justice Bruselas, the Court had ruled: "Conformably with the wise observation that the other branches of government are equally the ultimate guardians of the liberty and welfare of the people, we resolve to consider the matter in the petition MOOT."

What Salonga and his organization of legal watchdogs called Bantay Katarungan were claiming is that that "wise observation" was, in fact never made and that, therefore, the case was not moot at all and that the Court should have decided the case. In particular, the Court should have decided squarely whether the agreement between Foreign Affairs Secretary Alberto Romulo and US Ambassador Kristie Kenney regarding the custody of Smith, who was convicted by the Makati trial court of rape, at the US Embassy was binding on the Court of Appeals.

The issue here is the accuracy of the quotation of a portion of a decision by Justice Holmes which the Court of Appeals said in effect tied its hands. The rule, the CA had pronounced, was that the Executive, which was "equally the ultimate guardians of the liberties and welfare of the people," was the more appropriate government organ to conduct diplomacy.

Here’s the disputed portion of that decision, which we quote at length to give a better flavor of the context in which it was made:

"If it is the position of government that the language of the VFA is clear as seen by the petitioner and as also seen by the US Embassy, despite the strong and palpable indications that it is not so, then let it do as it sees fit and deal with such latest agreement as its sound judgment permits; for as Justice Holmes once wisely observed, ‘the other branches of Government are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’

"Courts may not directly intervene in the exercise of diplomacy no matter how proudly or meekly, strongly or weakly, such exercise may conducted by the appropriate political organ of government. Courts may only say what the facts are and what the law may be in a given case or controversy and rule accordingly. That is what the respondent judge did and that is what we can also do; nothing more and nothing less." (Itals. the Court’s)

The Court of Appeals cited as source of the quote from Justice Holmes the case of Missouri, Kansas and Texas Railroad Co. v. May (194 US 267, 270). Well, like any good student of law (which the Senator undoubtedly is, having earned a doctorate in jurisprudential science from Yale), Salonga looked up the case, at which point the shit, shall we say, hit the fan.

In that old 1904 case, Justice Holmes, a giant in US legal thought and jurisprudence, turns out to have said, precisely, as follows: "Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts."

So, Justice Holmes said that legislatures are ultimate guardians of the liberties and welfare of the people in as great a degree as the courts. Justice Bruselas, you will recall, had said that other branches of the Government are such ultimate guardians. Justice Holmes limited his pronouncement to legislatures, while Justice Bruselas apparently broadened the rule to all branches of government.

Specifically, Justice Holmes, at least in this decision, seems to have omitted the Executive department, while Justice Bruselas seems to have included that branch. The Missouri case, incidentally, was not a case arising under international law. Nor did it involve a legal principle remotely related to the Smith rape conviction.

Missouri was a case which reached the US Supreme Court because a statute was assailed as contrary to the 14th Amendment of the US Constitution which prohibits a State from depriving any person of life, liberty or property without due process of law and from denying any person the equal protection of the law.

This case had to do with a Texas law which penalized railroad companies for allowing a certain type of "obnoxious" weed to grow upon land adjoining the tracks. The penalty was paid to owners of contiguous land which was harmed by the offending weed. The railroad company claimed the law was discriminatory and in violation of the US federal Constitution.

It was in this context that the Texas statute was upheld. In a two-page ruling, the Supreme Court, through Justice Holmes, said, "There is no dispute about general principles. The question is whether this case lies on one side or the other of a line which has to be worked out between cases differing only in degree. With regard to the manner in which such a question has to be approached, it is obvious that the legislature is the only judge of the policy of a proposed discrimination."

Senator Salonga notes: "The rational, in our view, is obvious. In sessions of the House or of the Senate, there are open, public debates between and among the members. Also, the Senate checks and balances the House on many questions of public interest, and vice versa. All these are not observed by the President…"

The Senator says he would like to think that Bruselas did not deliberately misquote Holmes, but speculates that a researcher or another Associate Justice might have been the source of the false quote. He urges a "prompt, impartial, thorough inquiry."

This alleged falsification of a quote from a US Supreme Court case, which is easily verifiable, is strictly sophomoric stuff, although it has indubitably momentous consequences. What, one wonders, was the architect of this unseemly scam thinking?