Monday, January 22, 2007

Beholden Justice


Written by Patricio P. Diaz/MindaNews
Friday, 19 January 2007

GENERAL SANTOS CITY (MindaNews/18 Jan) -- Just very recently, an American soldier in South Korea raped a Korean woman – a 23-year-old raping a 67-year-old. Hours after South Korean police had arrested the soldier, Maj. Gen. John Morgan, acting commander of the 8th Army, issued an apology.He said: “I deeply regret and personally apologize for this terrible incident that has resulted in grave injury to a Korean civilian. This vicious act is an affront to all soldiers.” According to the AFP report, some 29,000 US troops are stationed in South Korea.

In Okinawa, Japan, the base of the US Marines in the Pacific, Japanese authorities take custody of American soldiers who rape Japanese women and try them in Japanese courts. In reported incidents in the past, Japanese authorities frustrated the Americans in their bid to take custody of their soldiers.

The recent incident in South Korea, as well as those in Okinawa, highlights the Smith rape case – the contrast in the dispensation of justice. Marine Lance Cpl. Daniel Smith is from the Okinawa US military base.

To highlight more the contrast, had Smith raped an American woman – white, black or immigrant -- in his homeland, within months, not a year, he would have been in jail and be there while awaiting his appeal.

Beholden Justice

Smith basks in the comfort of what may be called “beholden justice” in the Philippines engendered by the US arm-twisting diplomacy and double-standard view of the court – one standard for the US and another for the Philippine, notwithstanding that the Philippine court system is modeled after that of the US.

Under US court rules and procedures, judicial proceedings end with the sentencing. The convicted goes to jail while awaiting the results of his or her appeal. That, too, was the ruling of Judge Benjamin Pozon which was sustained by the Court of Appeals.

But Washington did not respect that. Through its embassy, it insisted that “judicial proceedings” as provided in the Visiting Forces Agreement end when the appeal ends. Malacañang supported that line and Smith’s petition at the CA that he be put under the custody of the US Embassy.

To give muscle to the US position, the Pacific Command chief announced the cancellation of the joint US-RP military exercises in February – the Balikatan. Alarmed that other US military and economic assistances might be cut, too, Malacañang agreed to transfer Smith from the Makati jail to the US embassy.

The CA decision, penned by Justice Apolinario Bruselas Jr., in upholding Pozon’s ruling, was hailed as a “roaring lion” but decried as “a roar ending in a whimper” when it dismissed Smith’s petition as moot without ordering his return to Makati jail. Bruselas must have felt beholden to Malacañang.

In the Philippines, it is not uncommon to see components of the pillars of justice, including judges of courts, beholden to the President and those closely associated with Malacañang. Examples are legions. That Bruselas has been seen by many as having lost nerve is understandable.

Respect for the Court

That Malacañang did not respect the court in the Smith case is deplorable. Just as deplorable is Washington’s disrespect for the Philippine court.

Court decisions in the US are questioned. However, Americans bow to these decisions until they are reconsidered after having been reviewed by the courts themselves – from the lowest to the highest.

Americans know that their courts are not beholden to their president. In two landmark cases recently, President George W. Bush was virtually chastised by the US Supreme Court and a US district judge.

In an earlier case, the US Supreme Court voided the military courts Bush had ordered created to try the foreign terrorism detainees at Guantamano Bay Naval Base prison. In giving the order, Bush believed that he did not violate the US Constitution and the Geneva Conventions.

Following the Court’s ruling, Bush asked Congress to pass a law authorizing the creation of the military tribunals. Under the doctrine of check-and-balance, the Supreme Court will scrutinize the law for its conformity with the Constitution and the Geneva Conventions if questioned.

In another case, US District Judge Anne Digs Taylor, an African-American, ruled “that President Bush’s secret eavesdropping program to track terrorists is unconstitutional and ordered it to cease immediately” – rejecting the president’s “claim that he had the inherent power to authorize the program”.

In what amounted as a rebuke, the judge said: “There are no hereditary kings in America and no powers not created by the Constitution” – actually meaning that what’s provided in the Constitution may not be interpreted just by the Executive but must be spelled out by Congress in an enabling law.

The ruling was questioned immediately by the Department of Justice and the conservatives. Whatever the outcome of the appeals, which could go up to the US Supreme Court, will not dilute the high respect of the court by the Americans starting from the president.

Sad Reality

Why can’t the American authorities respect the Philippine court ruling in the Smith rape case? Had that been an American court ruling, Smith would have directly gone to jail. Why the double standard?

Why did the US military apologize to the South Koreans and called the act of its soldier “an affront to all soldiers”? The Marine commander in Okinawa did not find the Filipinos deserving of an apology and the act of Smith as an affront to the Marine Corps.

Why were the Marines in Okinawa arrested for raping Japanese women held by Japanese authorities in Japanese jails? The Japanese, unlike the Filipinos, must not be beholden to the Americans.

Why? Why? Why? Is it because the Americans respect the South Koreans and Japanese as sovereign in “words and deeds” while the Filipinos are sovereign only in “words” but colonials in “deeds”? That the South Koreans and Japanese assert their sovereignty while we don’t?

Look at the VFA. To us, it’s a law – a treaty ratified by our Senate. Do the Americans regard it their law? It was not ratified by the US Senate. The US Constitution provides that the president can make treaties with the concurrence of two-thirds of the Senate and these treaties “shall be the supreme Law of the Land”.

The demeaning Smith case, an icon of “beholden justice”, highlighted by a similar case in South Korea and several others in Japan for their different treatment by US authorities, exposes the sad reality of the Filipino-American relations that Malacañang treasures and wants to protect at all costs.

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