By Fr. Ranhilio Callangan Aquino

I have been told that the Department of Foreign Affairs, through the Office of the Solicitor General, has asked the Supreme Court to “clarify” its judgment on the Daniel Smith case, the valedictory ponencia of retiring Justice Adolf Azcuna. Actually asking the High Court to “clarify” its judgment was a roundabout way of asking for a reconsideration—and there are good grounds for a reconsideration. I can imagine rabid anti-Americans stomping and frothing in the mouth over what they will certainly interpret as the DFA’s espousal of American interests over ours. That is not how I see it. It is only right for the department to be vigilant over our compliance with our treaty obligations. It would be remiss in its duties were it to sit by as government rides roughshod over treaty commitments.

Before we start fretting about how generous the Philippines has been to the Americans under the Visiting Forces Agreement, it is worthwhile to ask how these agreements usually go. It should be pointed out that in other agreements involving visiting forces in other jurisdictions, the immunities and exemptions given visiting forces are ampler and more generous. The UN Model for visiting forces agreements gives us a good idea. It provides: “The members of the military component of the peacekeeping operations will be subject to the exclusive jurisdiction of their respective state in regard to any criminal act that they might commit in the territory of the receiving state. In other words, the sending state shall have the right to exercise exclusive jurisdiction over the military component of their peace-keeping mission, in accordance with their own laws and through the institutions of their own country.”

Compared to the UN model, the VFA quite clearly leans in our favor. Our courts exercise criminal jurisdiction over offending US servicemen who commit crimes within our jurisdiction. But we cannot have all cards stacked to our advantage. That is not how treaties are forged, and having your cake and eating it too is simply not possible. Let us also quit the foolish line that it is to our advantage to denounce the treaty. We have profited by its terms in many ways, and being able to count on the might US troops when the need should arise is distinctly more advantageous than crowing about our “independence”, kampilan in hand, when we should be faced with a genuine threat.

I believe that the Supreme Court’s decision should be reconsidered first because I submit that the relevant provision of the Visiting Forces Agreement is paragraph 6, Article V that reads in part: “The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings.” Obviously, the question is whether or not judicial proceedings have been completed. True, the trial court has convicted Daniel Smith, but he has appealed his conviction— an appeal of which the Court of Appeals has already taken cognizance. Not too long ago, the Supreme Court articulated the position that the presumption of innocence is not cancelled by conviction but is sustained throughout an appeal. Since the appeal process ongoing at the Court of Appeals is obviously judicial, I do not see what logical reason there can be for holding that judicial proceedings have been completed.

A decision is executory when a writ of execution will issue. This sounds like a tautology but it says a lot about the case of Daniel Smith, for at this time, the trial court that sentenced him will most assuredly not issue a writ of execution because of the pending appeal. As the conviction has not yet attained finality because an appeal is under way, then the relevant provision is that having to do with custody from the time of the commission of offense until completion of all judicial proceedings.

Significantly, the Vienna Convention on the Law of Treaties lays down a very important precept in respect to the interpretation of treaties. Relevant rules of international law applicable to the relations between parties provide means of interpreting treaty provisions. When interpreting therefore the crucial phrase “completion of all judicial proceedings,” recourse may also be had to the applicable rules of international law. Prof. Ian Brownlie observes that there is authority for the proposition that visiting forces enjoy absolute immunity. In fact, immunity is a related issue to the integrity and efficiency of the visiting force. The Defense (Visiting Forces) Act of 1975 of Papua New Guinea make it possible for the sending state to request custody of its serviceman held for trial because of violating local laws. In the case of Whitley v. Aitchison (1958) the French Court of Cassation went so far as to rule in regard to the case of a foreign military serviceman that international conventions have the force of law and when they conflict with domestic law, the conventions apply where occasion demands. The point to all this is the deferential policy of international law to visiting forces or foreign troops.

What Daniel Smith’s case has deplorably become is a childish them-versus-us stand off. That is most decidedly what it is not and we should repudiate this infantilism. It has to do rather with the involved and academically challenging question of the exercise of jurisdiction over visiting forces, a question that is not raised for the first time in Smith’s case but is a continuing source of recondite discussions in international law. This is not the time to spill our bile on “the detested Americans,” even if we clamber over each other to reach for American visas. This is the time rather for our law professors and jurists to write and debate on the important question of jurisdiction. In short, let us stop being petty. There is nothing petty about rape, that is for certain, but we do not even know yet—at least not until the appeals process is completed—whether or not there has been rape. The pettiness consists in making of an otherwise challenging jurisprudential issue an occasion to vent our spite on devils of our own conjuring.

Is it not sheer hypocrisy in fact to demand that Smith be transferred forthwith to Muntinlupa or probably to one of our crowded city jails “like all others” when we have quite repeatedly asked that our compatriots be treated so unlike others in criminal cases? It was not too long ago that our President asked for the commutation of the sentence of a doomed Filipino in the Middle East—and we rejoiced, with perfectly good reason, when our jailed kababayan (a term I use in memory of Francis Magalona) was conceded this accommodation. If we were purists about equality and fundamentalists about treating similars similarly, why did we ask that the law be bent to set him free? I am not regretting the clemency extended our workers overseas. I deplore rather our hypocrisy and duplicity. I have no doubt that if one of our soldiers or policemen, doing service abroad under the aegis of one agreement or the other, were to fall into Daniel Smith’s position, we would demand favors and accommodations ampler than those presently contained in the VFA. In the case of Daniel Smith, we are not even talking accommodation here. What we have are provisions agreed upon by the Philippines and the United States in their sovereign capacities.

But what is it that makes us so eager to throw an American into one of our jails? Let us not flatter ourselves by sanctimoniously claiming that it is because we want to see justice done. It has more to do with what Hegel acutely noted: What the slave longs for is not really freedom, but to enslave in turn the master whose slave he now is. And this is pathetic truly because Hegel goes on to remark that even if this overthrow were in fact to succeed, no progress would thereby be achieved as it would only transfer slavery from one side to the other. I am not suggesting that we are slaves, but I am insisting that we stop thinking, acting and emoting like slaves in the Hegelian analysis. This is something in our collective psyche on which we must get to work immediately. It is this same disorder that makes us gloat over the imprisonment of the mighty, the embarrassment of the popular and the failings of the exalted. Why have we made of ourselves a truly sick people?

“I have not come for the healthy, but for the sick.” That was Jesus’ line, and now that we are in the Lenten season, it is opportune for us as a nation to throw ourselves at his feet as did the lepers as cry out: “If you will, you can make us clean.” He certainly wills our well-being, and it is certainly his will that we thirst for justice and not for the satisfaction of some collective perversity.

rannie_aquino@rannieaquino.com