Like most deeds foul, it was done under cover of darkness, and on a Friday too, with “traffic” as an excuse. But the real reason was clear enough even for the blind: the perpetrator–the “perp” as US police agencies would put it– knew it couldn’t be defended in the light of day, whether before public opinion or in court.

A court order was already in place–in fact two court orders. One was Makati Regional Trial Court Judge Benjamin Pozon’s, which committed US Marine Daniel Smith to the Makati City Jail after his conviction and sentencing for rape.

The other was the Court of Appeals’, which upheld Judge Pozon’s interpretation of the provisions of the Visiting Forces Agreement, particularly 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.”)

Pozon holds that judicial proceedings were completed once Smith was sentenced, and the Court of Appeals agreed. Smith’s lawyers have appealed the CA decision, citing virtually the same provisions.

One would have expected Malacanang to at least wait for the outcome of that appeal, if only for the sake of appearing to respect the courts and to be acting as a sovereign government should. But the perp obviously couldn’t wait, since the US Embassy couldn’t abide being made to look like a third world power whose nationals can be kept in any old jail. (Never mind if they’re trailer park trash back home, they must be kept in the manner to which they’re not accustomed if in the Philippines. What would that say about the Empire otherwise?)

The Department of Interior and Local Government thus spirited Smith out of the Makati City Jail–of course with Police and Bureau of Jail Management connivance–and back into the US Embassy, beyond the reach of Philippine courts.

Malacanang issued the usual denials immediately after. Palace spokesmen said Mrs. Gloria Macapagal Arroyo had nothing to do with it; it was the DILG’s doing. Later, the usual retraction boys said the Palace “supported” Smith’s transfer, but argued that, after all, “the President has the power” to do what the DILG did.

Of course Mrs. Arroyo did it– ordered the DILG, the police and every other department under her control to return Smith to US custody. Malacanang legal counsel Sergio Apostol, who claims to be a lawyer, already suggested it two weeks ago, when he said that the most the courts can do is to cite the executive department for contempt. What he didn’t say is that no court can do that to the President, whether de facto, de jure, or both, he/she being immune from suit while in office.

But Apostol can be sued. So can the DILG’s Ronaldo Puno and his subalterns in the Philippine National Police, and so can Raul Gonzalez, who claims to be Secretary of Justice, as well as Alberto Romulo of the Department of Foreign Affairs.

Puno carried out Mrs. Arroyo’s orders, but Gonzalez and Romulo had been laying the groundwork for it for weeks, as has Apostol with his “legal” advice.

These worthies should be sued not only for contempt of court but also for the contempt they hold for this country and its people. They should also be sued for being the enforcers of an administration that’s as clueless about fairness and justice and decency as Daniel Smith and his cohorts are, and for conniving with a foreign power in furtherance of its interests.

Mrs. Arroyo is of course the arch-perp of this monstrous offense against rape victim “Nicole,” the courts, the rule of law, and whoever else will end up in the future at the receiving end of a US trooper’s attentions. It doesn’t need a Ph.D in political science to figure out why she did it. It’s for political survival, for which she needs all the help she can get, especially that of the United States, which will see her returning Smith to US custody despite the courts as a sign of strength, thus making her worthy of continued support.

There is talk of trying to impeach her again. But any impeachment attempt can happen only late this year, and is likely to prosper only if she loses control over the House of Representatives. That of course is premised on elections’ being held as scheduled in May, and on those elections’ being fair.

As things go in this country, those conditions are not easily met, but easily thwarted. A no-elections scenario is still a possibility. But even if elections are held, their being fair and honest is far from likely, given the Arroyo regime’s hold on government resources and manpower, and the Commission on Elections’ fabled innumeracy.

There is still People Power, the critical period being January-February. But far from being an opportunity for regime change, that period can instead give the regime the excuse to complete the restoration of authoritarian rule it began last year by savaging the Constitution. Such a restoration–say a declaration of martial law–would have no legal basis. But neither did Smith’s midnight transfer to US custody.

(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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