THE TRANSFER of US Marine Lance Cpl. Daniel Smith, the American soldier convicted of raping “Nicole” (unjustly I think), on the night of Dec. 29 from Makati City Jail to US custody at the US Embassy is being improperly used by the opposition and leftist groups to attack the administration of President Gloria Macapagal Arroyo.
The fact of the matter is that the Philippines had to stick to the letter of the Visiting Forces Agreement that it signed with the US in 1992, which stipulates that all US military personnel arrested for a crime in the Philippines may be kept in US custody until all appeals are finished. Some in the Philippines have argued that this stipulation only applies until a person is convicted and sentenced to jail time, something that has already happened with Smith. The US and Philippine governments think differently, and this is where the struggle between Judge Benjamin Pozon and the administration arose. Pozon tried to show that he and the judiciary were independent from the executive branch of government. Fair enough, but in this case the administration decided to invoke strategic national interests that ultimately trumped the decision of any court in the Philippines.
The US, the world’s sole remaining superpower, did not pull any punches on what it wanted to happen. When the Court of Appeals refused to hand Smith over to the US Embassy, the Bush administration promptly announced that the yearly Balikatan military exercises with the Philippines would be canceled this year. Of course, what was unspoken by the US was that military aid would also probably be severely cut back and import tariffs hiked on Philippine exports to the United States as punishment for displeasing it.
Since the Philippines has one of the most under-equipped militaries in Asia, the US is the country’s leading trade partner, and Washington is the Philippines leading source of foreign aid, the Arroyo administration could hardly contemplate standing up to its American ally. Arroyo was stuck between a rock and a hard place, to put it politely, and she just grinned and bore it.
While the timing of Smith’s transfer to the US Embassy on Dec. 29, a full five days before the Court of Appeals ruled on Smith’s petition for a temporary restraining order on his confinement in the Makati City Jail, can be criticized, it is not surprising since the government felt Smith should be in US custody and was under tremendous American pressure to do so as quickly as possible. By transferring Smith so quickly, the Arroyo administration provided the CA with a “fait accompli” or accomplished fact.
In the 38-page ruling on Wednesday on Smith’s request, the CA admitted that it could not interfere with a diplomatic issue between the Philippines and the US, even if it disagreed with the government’s decision to hand Smith back to the Americans. Associate Justice Apolinario Bruselas Jr. wrote that the court had to leave it to the government to “do as it sees fit and deal with such latest agreement as its sound judgment permits...”
Malacañang Palace has now called for a review of the VFA, saying it will work with Congress to amend the terms of the agreement. That is fair enough and should be negotiated with the US to make provisions about what happens to US soldiers accused of committing crimes on Philippine soil extremely clear and to also make sure that they benefit both parties equally.
I think that Smith’s sentence will be reduced on appeal, but we will have to wait and see what happens. In my mind Nicole has been used as a battering rod by leftist groups to assail the US military presence in the country and the VFA.
In any event, US military personnel are already operating under new stricter rules while in the Philippines, designed to minimize their possibility of falling afoul of the law. The controversy surrounding the case is straining the strategic relationship between the US and the Philippines to almost unbearable levels, thus it is in the interest of both countries that this case be resolved as soon as possible.