I understand Lance Corporal Daniel Smith’s burning desire to go back to the US Embassy. It must be tough for someone used to the amenities the US military provides its troops (air-conditioned tents in Iraq, for example) to be in a hot, overcrowded, stinking jail surrounded by the Filipino poor and harassed guards, whose language is as much of a mystery to him as US foreign policy.

Smith has a cell to himself, and probably has his food brought in from outside, courtesy of the US Embassy. But that doesn’t make up for the conditions he has to live with in a Philippine jail, where the sanitary facilities are at best perfunctory and there’s no escaping the tropical heat. But not being among the Makati City Jail multitudes, no one’s going to rape him–such a pretty boy—in the showers (there aren’t any) or in his sleep.

Rape is of course what got Smith into trouble in the first place. Unlike his Filipina victim, however, he’s getting some protection from, as the cliché puts it, “a fate worse than death.” The protection comes in the form of the steel bars and concrete walls that keep his cell separate from the mass of humanity crammed into the Makati City Jail. But it’s also courtesy of the colonial brain rot of the Philippine justice system.

The rot has been at work since last year, when Smith raped “Nicole” at the Subic Free Port where the US Subic Naval Base used to be, thus giving the episode a symbolism about which Smith and his three accomplices (who got off scot-free and who’re now free to molest schoolgirls in Okinawa, Japan, where the US has a military base) are totally clueless. For those who no longer remember, Subic Naval Base and Clark Airbase in Pampanga were, for nearly a hundred years, the most visible symbols of US sovereignty in, around, and over the Philippines.

We begin with Raul Gonzalez, whose official title is Secretary of Justice, who, among other acts and statements last year immediately declared that custody of Smith and his three partners in crime (the three egged on the rape, shouting “F—k! F—k!” as Smith did his thing, which makes them principals) belonged to the United States.

He cited the very same Visiting Forces Agreement (VFA) provision the US Embassy is now citing. ( That’s Article 5, paragraph 6—“The custody over 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 the judicial proceedings.”)

But he went further. At some point he declared that the Philippines could not demand custody over Smith and company because Philippine detention facilities did not have the amenities they’re used to. Only half in jest, he rhetorically asked, “What if they demand air-conditioners?” (It didn’t occur to him that if they did, the DOJ could simply refuse.) He also referred to those clamoring for Philippine custody of Smith et.al. as a “mob,” admitting at one point that the DOJ was forced to prosecute the four Marines only because of “mob pressure.”

Later, Gonzalez ordered the DOJ to downgrade the charges against Smith’s three cohorts from principals to accessories, but said that the Filipino driver of the van where the rape took place could be charged as an accomplice. The charge is a heavier offense penalized with 12 to 20 years’ imprisonment, while the “accessories” charge penalizes offenders with six to 12 years’ imprisonment. Thankfully the court ignored his views. Downgrading the charge against the three US Marines would have implied that being merely present during the rape, as the van driver supposedly was, was a graver offense than cheering on the rapist..

So much for Gonzalez. The Department of Foreign Affairs, meanwhile, agreed with Gonzalez on the issue of custody. “Nicole’s” lawyers had accused the DOJ, from Gonzalez to his prosecutors, of “lawyering for the accused.” But the DFA could have also been accused of being a US Embassy annex. US Ambassador Kristie Kenney and other US officials have been saying that Smith should be in US custody after their security personnel failed to physically grab Smith from the Makati police last Monday. The DFA has been nodding its head so vigorously Kenney might as well have been talking to herself.

Press Secretary Ignacio Bunye, speaking for the present Palace occupant, was a bit more coy. He declared the other day that “During these times, forbearance is called for. We should not allow excessive emotions to stand in the way of a rational solution consistent with the rule of law and our strategic interests.”

Translation: Filipinos should be tolerant; they should be as patient as their favorite farm animal, the carabao. As for “the rule of Law,” the rule is in the VFA’s Article 5 paragraph 6. And “our strategic interest” is to give the United States and its troops free run of the place. Never mind the VFA provision that “In extraordinary cases, the Philippine

government shall present its position to the United States government regarding custody, which the United States government shall take into

full account.” It’s a totally meaningless clause anyway, specially that part that says the US “shall take (the Philippine position) into full account.”

Under these circumstances, in which not only is the VFA lopsidedly in favor of the US and its personnel to begin with; the Philippine government itself is so anxious to please, Smith will soon find himself back in his US Embassy quarters, and none the worse for wear except for a heat rash. He can even be shipped out of the country and “detained” in the US base in Okinawa, his case being no “extraordinary case.”

As various commentators have said, this rape is all about sovereignty–US sovereignty.

(Business Mirror)

Prof. Luis V. Teodoro is a former dean of the University of the Philippines College of Mass Communication, where he used to teach journalism. He writes political commentary for BusinessWorld.

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